ACCEPTED
03-15-00258-CR
7935468
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/20/2015 4:32:07 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS
FILED IN
FOR THE THIRD DISTRICT 3rd COURT OF APPEALS
AUSTIN, TEXAS
11/20/2015 4:32:07 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
STEPHANIE MAIE, § CAUSE NO. 03-15-00258-CR
HEINTZLEMANN § Trial COURT No. 42636
Appellant
V. §
THE STATE OF TEXAS, §
Appellee §
BRIEF OF APPELLANT
Appealed from the 33rd Judicial District Court, Burnet County, Texas
Honorable Alan Garrett, presiding
Law Office of Alice E. Price
408 South Liveoak
Lampasas, Texas 76550
Tel/Fax 512-556-4777
State Bar No. 00786177
apgregg50@hotmail.com
Attorney for Appellant
APPELLANT HEREBY WAIVES ORAL ARGUMENT
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TABLE OF CONTENTS
Page
Table of Contents 2
Index of Authorities 3
Identity of Parties and Counsel 4
Statement of the Case 5
Issue Presented
The evidence is insufficient to support a conviction for possession 6
with intent to deliver, a controlled substance, methamphetamine,
in an amount of one to four grams. TEX. HEALTH & SAFETY CODE
§§481.112(a)(c), (West 2013), because there is no evidence of an
affirmative connection between the Appellant and the contraband
under the Link Doctrine.
Statement of Facts 6
Summary of the Argument 7
Argument 8
Standard of Review 12
Prayer 14
Certificate of Service and 15
of Compliance with Rule 9
2
Index of Authorities
Authorities Page Page
Court cases United States Supreme
Jackson v. Virginia
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 550 (1979) 9
Texas Court of Criminal Appeals cases
Brooks v. State
323 S.W. 3d 893 (Tex.Crim.App.2010) 9
Olivarez v. State
171 S.W.3d 283, 291 (Tex. App. Houston [14th Dist.] 2005, no pet. 9,11
Poindexter v. State
153 S.W.3d 402, 406 (Tex. Crim. App. 2005) 10
Evans v. State
202 S.W.3d 158, 162 n. 12 (Tex. Crim. App. 2006) 11
Taylor v. State
106 SW3d 827 (Tex. App.-Dallas 2003, no pet.) 11
Wiley v. State
388 S.W.3d 807, 815 (Tex. App. – Houston [1st Dist.] 2012, pet. 11
Robertson v. State
80 S.W. 3d 730,735 (Tex. App- Houston [1st Dist.] 2002) 14
Statutes
TEX. HEALTH & SAFETY CODE §§481.112(a)(c), (West 2013) 5,6
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IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT
AT AUSTIN, TEXAS
STEPHANIE MAIE HEINTZLEMANN, §
Appellant §
§ CAUSE No. 03-15-00258-CR
V. § TRIAL COURT NO. 42636
THE STATE OF TEXAS, §
Appellee §
IDENTITY OF PARTIES AND COUNSEL
TO THE HONORABLE COURT OF APPEALS:
COMES NOW STEPHANIE MAIE HEINTZLEMANN, the Appellant
herein, and would show the court interested parties herein are as
follows:
STEPHANIE MAIE HEINTZLEMANN, appellant, c/o/ Garza East Unit
4304 Highway 202 Beeville, TX 78102-8981
Barton Vanna, trial attorney
For appellant, 101 High. 281 N, Suite 205C, Marble Falls, Texas 78654
Alice Price, appellate attorney for appellant, 408 South Liveoak
Lampasas, Texas 76550
Sonny McAfee, Burnet County District Attorney, and
Gary Bunyard, Assistant District Attorney, Burnet, Texas
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IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT
AT AUSTIN, TEXAS
STEPHANIE MAIE HEINTZLEMANN, §
Appellant §
§ CAUSE No. 03-15-00258-CR
V. § TRIAL COURT NO. 42636
THE STATE OF TEXAS, §
Appellee §
STATEMENT OF THE CASE
A jury in the 33rd Judicial District Court in and for Burnet County,
Texas, convicted STEPHANIE MAIE HEINTZLEMANN of possession, with
intent to deliver, a controlled substance, methamphetamine, in an
amount of one to four grams. TEX. HEALTH & SAFETY CODE
§§481.112(a)(c), (West 2013), (CR Vol.1, page 45). After a jury found
Heintzlemann guilty, it assessed her punishment at 9 years’
confinement in the Texas Department of Criminal Justice’s Institutional
Division. (CR Vol. 1 page 45). Appeal was subsequently perfected from
that verdict and sentence. (CR Vol. 1, page 70)
5
ISSUE PRESENTED
The evidence is insufficient to support a conviction for possession with
intent to deliver, a controlled substance, methamphetamine, in an
amount of one to four grams. TEX. HEALTH & SAFETY CODE
§§481.112(a)(c), (West 2013), because there is no evidence of an
affirmative connection between the Appellant and the contraband
under the Link Doctrine.
STATEMENT OF FACTS
Background
On February 15, at approximately 1:40 a.m., Officer Paul Chrane
initiated a traffic stop of a 1998 Pontiac grand am in Granite Shoals,
Texas. The vehicle was stopped due to a rolling stop and an expired
registration. (RR Volume 3 page 96)Upon identifying the occupants of
the car, it was determined that the driver, a Grant Cole, had multiple
warrants for his arrest. (RR vol. 3 page 97). At this point, a search was
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conducted on the car. In the center console, a black bag was discovered
containing a pipe which later would be confirmed as containing
methamphetamine residue. (RR vol. 3 page 99). An officer Decker
assisted the first officer with the search of the vehicle, and states what
he saw was a car” full of a bunch of items, bags, kind of bit of disarray,
and loaded up -- with just stuff.” (RR vol. 3, page 110). As the police
continue to search the vehicle, they come across a number of bags. (RR
vol. 3 page 115) Officer Decker states that the bags were described as a
“Knapsack, satchel, duffel. It was hard to describe specifically a style of
bag other than it was a manufactured black bag with a zipper style on
it. I believe one of the other ones had another style of closure to them.
But not a suitcase or briefcase or something of that. Just a bag.” (RR
vol. 3 page 115)During the search of the vehicle and through numerous
bags, other items were discovered. Such as a straw which had been cut
about a third in size, (RRvol.3 page 116) and inside a coin purse I
located two glass pipes, (RR vol. 3 page 118.)Other items recovered
were plastic baggies containing numerous small baggies with clear
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crystal substance inside. These were jeweler-style baggies, small zip-
style baggies, within a larger jewelry-style baggie. (RR vol. 3 page 121).
After these items were collected into evidence both occupants were
arrested and transported to the county jail for processing on possession
with intent to deliver , a controlled substance, methamphetamine.
SUMMARY OF THE ARGUMENT
To prove Ms. Heintzlemann guilty of possession with intent to deliver
methamphetamine, there must be evidence that establishes her care, custody
and control over the contraband discovered in the car. There is no question that
there was methamphetamine and other illegal items found in the car in which
Appellant was a passenger. This Court has to examine the evidence which tend to
connect Appellant to those items and balance them with factors that tend to
disprove Appellant possessed it.
Standard of Review
In a sufficiency review, a reviewing court examines the evidence in
the light most favorable to the verdict to determine whether any
rational fact-finder could have found the essential elements of the
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crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 550 (1979); Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010). The fact-finder is the exclusive judge of the
facts, the credibility of the witnesses, and of the weight to be given
testimony. Brooks, 323 S.W. 3d at 899. Any evidentiary inconsistencies
are resolved in favor of the judgment. Id.
ARGUMENT
Viewing the evidence in this case in the light most favorable to the
verdict, a rational fact-finder could not have found beyond a reasonable
doubt that the defendant in this case was in exclusive possession of the
contraband found. When the accused is not in exclusive possession of
the place where the contraband is found, the State must show
additional affirmative links between the accused and the contraband.
See Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App. – Houston [14th
Dist.] 2005, no pet.). An affirmative link generates a reasonable
inference that the accused knew of the contraband’s existence and
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exercised control over it. See id. The “affirmative links” are designated
to protect the innocent bystander from conviction based solely on
fortuitous proximity to someone else’s drugs. Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005). Thus, when the accused is not
in exclusive possession of the place where the substance is found, there
must be additional independent facts and circumstances that
affirmatively link the accused to the contraband. See id.
Courts have identified the following factors as affirmative links that
may link an accused to a controlled substance:
(1) the [accused’s] presence when a search is conducted; (2) whether
the contraband was in plain view; 3) the [accused’s] proximity to and
the accessibility of the [contraband]; (4) whether the [accused] was
under the influence of narcotics when arrested; (5) whether the
[accused] possessed other contraband or narcotics when arrested; (7)
whether the [accused] attempted to flee; (8) whether the [accused]
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present;
10
(11) the [accused] owned or had the right to possess the place where
the drugs were found; (12) whether the place where the [contraband]
was found was enclosed; (13) whether the [accused] was found with a
large amount of cash; and (14) whether the conduct of the [accused]
indicated a consciousness of guilt, See, Evans v. State, 202 S.W.3d 158,
162 n. 12 (Tex. Crim. App. 2006)Evans, supra, n. 12; Olivarez v. State,
171 SW3d 283, 2914 (Tex.App.Houston [14th] 2005, no pet.); Taylor v.
State, 106 SW3d 827 (Tex. App.-Dallas 2003, no pet.)
It is the logical force of such links, rather than merely quantity that is
important in determining whether the evidence is sufficient to connect
the accused to the alleged contraband. Id. at 162. The list of affirmative
links is not exclusive. Id. Appellate courts do not balance the absent
affirmative links against the affirmative links that are present. See Wiley
v. State, 388 S.W.3d 807, 815 (Tex. App. – Houston [1st Dist.] 2012, pet.
ref’d). The number of these links, proved by independent facts, is less
important than the logical force by which they tend to affirmatively link
the accused to the contraband. Taylor, supra, at 831. Very few, if any,
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of these factors are present in this case, and any that are have little or
no “logical force” to link the appellant to the methamphetamine. Each
of these factors will be examining in turn.
1. The accused presence when search was conducted- Appellant was
present.
2. Contraband in plain view: It was not.
3. Accused was the owner of premises: It was an automobile, thus not
applicable.
4. Contraband accessible: The drugs were found in different bags
distributed throughout the vehicle. No contraband was found in the
purse of the appellant (RR Vol 3, page 133.)Both occupants of the car
had access to the bags.
4. Found in close proximity: Yes, but both occupants were in close
proximity to the bags.
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{ "pageset": "Sc1
5. Odor of methamphetamine: There was none. While one
officer said he smelled alcohol, there was no smell of
methamphetamine.
6. Paraphernalia in view or near Appellant: None was in plain sight.
7. The accused appeared to be a user: There is no evidence to this
point.
8. Conduct indicating consciousness of guilt: There is no evidence the
appellant did anything indicating guilt.
9. Connection between accused and contraband: The contraband was
found in the car where both occupants had been riding. No bag with
contraband was linked to the appellant as her sole property.
10. Place where found enclosed: The contraband was found in bags,
{ "pageset": "Sc1
various different bags in the vehicle.
11. Occupants gave conflicting statements as to relevant issues: No
evidence of that.
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12. Affirmative statements connecting Appellant to the drugs: There are
none.
13. Large amounts of cash: a fifty dollar bill, and a one dollar bill. (RR
vol. 3, page 125)
14. Flight or furtive gestures: Not only is there no evidence of these
factors, quite the opposite Appellant was very cooperative and gave
her consent to search the vehicle.
Conclusion
Appellant was not in exclusive possession of the contraband; Ms.
Heintzlemann was merely found in close proximity to the contraband.
Appellant was only a passenger in a vehicle that contained a controlled
substance. Because Appellant was not in exclusive possession of the
vehicle, additional facts and evidence must have been submitted to
affirmatively link; Ms. Heintzlemann to the contraband. See Roberson
v. State, 80 S.W.3d 730, 735 (Tex.App. - Houston [1st Dist.] 2002).
Prayer
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WHEREFORE, STEPHANIE MAIE HEINTZLEMANN prays that this court
reverse the judgment of the trial court and render a judgement of
acquittal in this case or enter such other orders as it finds just and
appropriate in keeping with its findings herein.
Law Office of Alice E. Price
408 South Liveoak
Lampasas, Texas 76550
Tel/Fax 512-556-4777
By: /s/ Alice E. Price
Alice E. Price
St Bar No. 00786177
Attorney for Appellant
CERTIFICATE OF SERVICE AND OF
COMPLIANCE WITH RULE 9
This is to certify that on November 20, 2015, a true and correct copy of
the above and foregoing document was served on Gary Bunyard, Ass. District
Attorney, Burnet County. P O Box 725 Llano, TX 78643, in accordance with
the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in
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compliance with Rule 9 of the Texas Rules of Appellate Procedure and that
portion which must be included under Rule 9.4(i)( 1) contains 13,799 words.
_/s/_Alice E. Price ______
Alice E. Price
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