ACCEPTED
14-15-00531-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
11/3/2015 3:32:06 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00531-CR
IN THE COURT OF APPEALS FILED IN
FOR THE FOURTEENTH DISTRICT OF TEXAS14thHOUSTON,
COURT OF APPEALS
TEXAS
11/3/2015 3:32:06 PM
CHRISTOPHER A. PRINE
DAVID DANIEL RODRIGUEZ Clerk
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1967991
From the County Criminal Court at Law No. 1 of Harris County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
DAUCIE SCHINDLER
Assistant Public Defender
Harris County, Texas
TBN 24013495
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
1
IDENTITY OF PARTIES AND COUNSEL
Appellant David Daniel Rodriguez
Harris County Jail
SPN 02382462
701 N. San Jacinto Street
5G1 O1T
Houston, Texas 77002
Defense Counsel at Trial Ms. Marie Munier
Mr. Tommy LaFon
Attorneys at Law
1244 Heights Blvd.
Houston, Texas 77008
(713)880-9965
Prosecutor at Trial Ms. Jilliam Hawkins
Ms. Tara Shaikh
Assistant District Attorneys
Harris County
1201 Franklin Street, 6th Floor
Houston, Texas 77002
(713)755-5800
Presiding Judge The Honorable Paula Goodheart
County Criminal Court No. 1
1201 Franklin Street, th Floor
Houston, Texas 77002
Appellant’s Counsel Daucie Schindler
Assistant Public Defender
Harris County
1201 Franklin Street, 13th Floor
Houston, Texas 77002
(713)274-6717
2
TABLE OF CONTENTS
IDENTITY OF PARTIES ARGUMENT ....................................................................................... 1
TABLE OF CONTENTS ............................................................................................................. 2
INDEX OF AUTHORITIES ........................................................................................................ 4
STATEMENT OF THE CASE ...................................................................................................... 5
ISSUES PRESENTED ................................................................................................................. 5
ISSUE ONE: THE TRIAL COURT ERRED BY DENYING MR. RODRIGUEZ’
REQUEST FOR AN INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF
“ATTEMPTED POSSESSION OF A CONTROLLED SUBSTANCE”
STATEMENT OF FACTS............................................................................................................ 5
SUMMARY OF THE ARGUMENT .............................................................................................. 8
ISSUE ONE ............................................................................................................................... 8
ARGUMENT .............................................................................................................................. 8
Standard of Review ......................................................................................................... 8
Argument ......................................................................................................................... 8
PRAYER .................................................................................................................................. 11
CERTIFICATE OF COMPLIANCE ............................................................................................ 12
CERTIFICATE OF SERVICE .................................................................................................... 13
3
INDEX OF AUTHORITIES
Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). ............................................... 8
Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) .................................................... 10
Bridges v. State, 389 S.W.3d 508 (Tex. App. –Houston [14th Dist.] 2012, no pet.)......... 10
Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999) ...................................................... 9
Haley v. State, 396 S.W.3d 766 (Tex. App. –Houston [14th Dist.] 2013, no pet.) ............ 8
Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) ..................................................... 8
Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006) ..................................................... 8
Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993) .............................................. 10
Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). ................................................ 9
Statutes
TEX. CODE CRIM. PROC., ART. 37.09 .................................................................................... 9
TEX. HEALTH & SAFETY CODE §481.104(2) ....................................................................... 9
TEX. PENAL CODE § 15.01 .................................................................................................... 9
4
STATEMENT OF THE CASE
Mr. Rodriguez was charged with the misdemeanor offense of possession of a
controlled substance, namely, less than 24 grams of Alprazolam. (C.R. at 8). Mr.
Rodriguez entered a plea of not guilty on June 2, 2015, and proceeded to trial by jury.
On June 3, 2015, the jury found Mr. Rodriguez guilty as charged. The court sentenced
him to one hundred and twenty five (125) days imprisonment in the Harris County Jail.
(C.R. at 107). Mr. Rodriguez filed timely notice of appeal and on June 3, 2015,
undersigned counsel, of The Harris County Public Defender’s Office, was appointed
to represent him. (C.R. at 110-112).
ISSUE PRESENTED
ISSUE ONE
THE TRIAL COURT ERRED BY DENYING MR. RODRIGUEZ’ REQUEST FOR AN
INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF “ATTEMPTED
POSSESSION OF A CONTROLLED SUBSTANCE”
STATEMENT OF FACTS
Officer Jaime Vargas was working patrol for the Houston Police Department on
June 15, 2014, at about 7:20 a.m. when he encountered a vehicle tilted toward a ditch
at the end of a dead-end street. There was a barricade preventing the vehicle, a white
newer model Mercedes, from falling into the ditch. Officer Vargas decided to check
out the vehicle because he suspected it might have been stolen. (2 R.R. at 100-104).
Officer Vargas approached the vehicle in his patrol car and ran the license plate on the
MBT. The vehicle did not come back as having been reported stolen so he approached
5
the car on foot for further investigation. Officer Vargas noticed three Hispanic males
inside the vehicle; two in the front and one in the back. Officer Vargas approached the
driver’s side of the vehicle and notified his dispatcher that back-up was needed. Officer
Vargas called out to the men in the vehicle, but there was no response. All three of the
men were unconscious. Officer Vargas recognized Mr. Rodriguez in the courtroom as
the man in the driver’s seat of the vehicle. He first attempted to revive the driver and
then the rear passenger, but he was unable to get them to respond. He returned to the
driver, Mr. Rodriguez, and tried to get him to move out of the vehicle, but he had no
motor skills. When he began to wake up, the driver seemed to try to grab the steering
wheel, but Officer Vargas told him to calm down and placed his limp wrists in cuffs.
(2 R.R. at 105-108).
Officer Vargas pulled the driver out of the vehicle and placed him on the ground
on his side with his left leg over his right to keep him from rolling on his stomach. He
did not find any weapons on the driver. Another officer arrived at the scene and she
held Mr. Rodriguez to keep him from rolling onto his stomach while Officer Vargas
tried to wake up the passenger in the backseat. The man finally woke up when Officer
Vargas began pulling on his right arm in an attempt to remove him from the vehicle.
When the man finally got out of the car, Office Vargas searched him for weapons and
found a small bag of marijuana so he placed him in cuffs as well. (2 R.R. at 109-112).
While Officer Vargas was attempting to revive the backseat passenger, the front seat
passenger exited the vehicle. The man was missing a leg and relied on a crutch. The
6
man approached him and agreed to be searched. He too had marijuana on him so
Officer Vargas placed him under arrest as well. (2 R.R. at 113-114).
With the assistance of another officer at the scene, Officer Vargas picked up Mr.
Rodriguez and leaned him against the vehicle so he could stand. Mr. Rodriguez was
under the influence of something, but he was cooperative. In his police report, Officer
Vargas claimed that he conducted a search for identifying information at that time.
However, at trial, Officer Vargas testified that he was going to arrest Mr. Rodriguez for
public intoxication so he searched his person incident to arrest. Officer Vargas found
a small white pill at the bottom of Mr. Rodriguez’ pocket. Officer Vargas and his
supervisor identified the pill as a controlled substance and he placed Mr. Rodriguez
under arrest for possession of a controlled substance. Officer Vargas placed the pill in
the cup holder of his patrol car along with other possessions belonging to Mr.
Rodriguez. During a search at the jail, the jail attendant found two additional pills in
Mr. Rodriguez’ possession. (2 R.R. at 132-136).
Mona Colca, a forensic analyst at the Houston Forensic Science Center, tested
the evidence submitted by the Houston Police Department in this case and found that
the pills tested positive for alprazolam, commonly known as Xanax, and weighed .22
grams. According to Ms. Colca, Alprazolam has a retention time of 9.96 and a similar
substance, diltiazem, has a retention time of 9.79. In the sample tested in this case, the
retention time was 9.795. According to Ms. Colca, placing a pill in the cup holder of a
7
vehicle could cause contamination. Despite the irregularities, Ms. Colca opined that the
substance she tested for this case was alprazolam. (2 R.R. at 162-202).
SUMMARY OF THE ARGUMENT
Mr. Rodriguez argues that the trial court erred in denying his request for a lesser
included instruction of attempted possession because there was some evidence that the
pills found in his possession where not alprazolam.
ISSUE ONE
THE TRIAL COURT ERRED BY DENYING MR. RODRIGUEZ’ REQUEST FOR AN
INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF “ATTEMPTED
POSSESSION OF A CONTROLLED SUBSTANCE”
Standard of Review
Error properly preserved by an objection to the charge will require reversal as
long as the error is not harmless. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.
2006); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996), citing Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 19884), cert. denied, 481 U.S. 1019 (1987). This means
that any harm, regardless of degree, is sufficient to require reversal. Id.; Haley v. State,
396 S.W.3d 756, 766 (Tex. App. –Houston [14th Dist.] 2013, no pet.).
Argument
A defendant is entitled to an instruction on a lesser-included offense where the
proof for the offense charged includes the proof necessary to establish the lesser-
included offense and there is some evidence in the record that would permit a
jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-
included offense. Anything more than a scintilla of evidence is sufficient to
entitle a defendant to a lesser charge.
8
Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999).
Mr. Rodriguez caused the findings of the chemist to be called into question and
there was some evidence that the pills in his pocket were not alprazolam. There was
some evidence for the jury to conclude that if Mr. Rodriguez was guilty of anything at
all, he was guilty of attempted possession. Mr. Rodriguez requested a jury instruction
on attempted possession of a controlled substance. (3 R.R. at 4-5). Mr. Rodriguez’
requested instruction was denied by the Court. (3 R.R. at 10).
By statute, an attempt to commit the offense charged is a lesser included offense.
See Tex. Code Crim. Proc., art. 37.09. The crime of possession of a controlled substance
is committed when a person knowingly or intentionally possesses a controlled substance
listed in Penalty Group 3, which includes alprazolam. Tex. Health & Safety Code §
481.104(2). A person commits an attempt offense “if, with specific intent to commit
an offense, he does an act amounting to more than mere preparation that tends but fails
to effect the commission of the offense intended.” Tex. Penal Code § 15.01(a).
If the evidence raises the issue of a lesser included offense, the jury charge must
be given based on that evidence regardless of the strength of the evidence, regardless
of the source of the evidence, and whether or not the evidence is contradicted. Rousseau
v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).
There is some evidence for a rational jury to conclude that Mr. Rodriguez was
guilty of attempted possession, but not of actual possession, because he did not in fact
possess alprazolam, but instead was in possession of diltiazem. “Anything more than a
9
scintilla of evidence is sufficient to entitle a defendant to a lesser charge.” Bignall v. State,
887 S.W.2d 21, 23 (Tex. Crim. App. 1994). The standard may be satisfied if some
evidence refutes or negates other evidence establishing the greater offense or if the
evidence presented is subject to different interpretations. Robertson v. State, 871 S.W.2d
701, 706 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994). At a minimum, the
evidence in this case was subject to different interpretations. The trial court erred in
refusing to submit the issue to the jury.
The failure to include an instruction on the lesser-included offense of attempted
possession of a controlled substance was harmful. Bridges v. State, 389 S.W.3d 508, 513
(Tex. App. –Houston [14th Dist.] 2012, no pet.). The judge sentenced Mr. Rodriguez
to 125 days in jail on the Class A misdemeanor, which carried a potential punishment
of up to one year, plus a $4,000 fine. If the jury would have been able to convict Mr.
Rodriguez of a Class B misdemeanor, the punishment range would have been a
maximum of 180 days in jail, plus a $2,000 fine. Had he been found guilty of attempted
possession, the court might have imposed a midrange sentence in the Class B range, as
it did after he was found guilty of the only the jury was permitted to consider.
10
PRAYER
Mr. Rodriguez asks this Court to reverse and remand for a new trial due to
harmful jury charge error. .
Respectfully submitted,
Alexander Bunin
Chief Public Defender
/s/ Daucie Schindler
Daucie Schindler
State Bar No. 24013495
Public Defender’s Office
Harris County, Texas
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Daucie.Schindler@pdo.hctx.net
Tel: 713-274-6717
Fax: 713-368-9278
11
CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 2,212 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by Microsoft
Word Software.
3. Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
/s/ Daucie Schindler
DAUCIE SCHINDLER
12
CERTIFICATE OF SERVICE
I certify that on the 3rd day of November, 2015, a copy of the foregoing
instrument has been electronically served upon the Appellate Division of the Harris
County District Attorney’s Office.
/s/ Daucie Schindler
DAUCIE SCHINDLER
13