HHS-IS
IN THE
ORIGINAL TEXAS COURT OF CRIMINAL APPEALS
PETITION FDR DISCRETIONARY REVIEW
t=rtL
IN CASE* 05-14-00695-CR
OCT 02 2015
FROM THE FIFTH DISTRICT COURT OF APPEALS
AT DALLAS, TEXAS
On Appeal from the 196th Judicial District Court
HUNT COUNTY, TEXAS
Trial Ct.# 2B576
FILED IN
COURT OF CRIMINAL APPEA'.JAMES EDUARD rogers jr .,' petitioner pro se
OCT 02 ft".;: us-
STATE OF TEXAS, FIFTH DIST.CT.OF \/APPEALS
Abel Acosta, Clerk &
196th Judicial Dist .Ct . Hunt,Co,,Tx
TO THE HONORABLE JUDGE(S) OF THE COURT OF CRIMINAL APPEALS;
COME's NOW, DAMES EDWARD ROGERS OR, Petitioner pro se herein,
and files this his PETITION FOR DISCRETIONARY REVIEW (PDR), and would
shou this Hon. Ct. the following reason(S) WHY he feels said "DISCRETION
IS WARRANTED" as follows; U.S.C. A .-14 , DUE PROCESS VIOLATION
#1. There is a question of the "INTERPRETATION" of Texas Statutes
(Tx''.C^CCPi^iARTcf!3a.1'+ and .17) SEE: Direct Appeal Brief by Petitioners
Atty, Mr. John S. Butler, and compare to the States Reply Brief, and the
decision of the Fifth Court of Appeals. (District Court of Appeals)which
are attached hereto for the Courts convenience;
#2. NOTE': A MOTION FOR EXTENTION OF TIME FOR FILING THIS PDR PRO SE
WAS SUBMITTED TO THIS HON. CLERKS OFFICE ON August 2Bth 2015.
<-£,
♦Petitioner pro se IS LEGALLY BLIND and must have another 'prisoner'
assist him with this pro se litigation, which sometimes isn't immediately
available . Petitioner prose has no more funds to pay an atty. and
this A LIFE SENTENCE worthy of all possible consideration of this Hon.-
Ct. in reviewing and fairly emplimenting the proper "INTERPRETATION"
OF TEXAS STATUTES (TX .£. C.f, fftl.38 .1 4 & .17) "WITHOUT TWISTING WORDS"
and/or "MANIPULATING" and "CIRCUMVENTING" "JUSTICE" as it was intended
when passed through the legislature (?) SEE ALSO: MOTION FOR EXTEN
SION OF TIME" (A copy again attached hereto).
#3. Petitioner's Appeal Atty,, Mr. Butler, clearly pointed out that
'there was no evidence that Appellant knowingly possessed the drugs',
'no evidence that he put in the containers in which they were found' ,
'no evidence that he placed the drugs in the vehicle', and, indeed, the
accomplice witness, testified that she brought the bag containing the
drugs to the car and placed it at her feet',(RR Vol.3p.202) AND
'there is nothing to coorborate her statement that she did this at the
Appellants request'...(RR Vol3p.201). Furthermore, the accomplice,
Rachel Louise Powell, is, admittedly, from her own statements, a thief
and forger (RR.Vol.3 p.194), who admitted that she planned to do theft
again, and who was found, not only in possession of the drugs but also
in possession of a criminal instrument a,t the scene of the arrest(RR.Vol
3.p .197)
#4. THE ONLY evidence that might remotely connect Appellant pro se to
the crime , aside from his presence in the vehicle, was a 'brown colored
prescription bottle' with the name James Rogers on it(RR.Vol.3 P.102).
Even this, his name on the bottle appears pretty questionable , in
so far as the jury, during its deliberations, asking to see the pill
bottles, then asking for a "MAGNIFYING GLASS".? KKti% (RR •Vol .!<4 .p.45-46 )
Granting, it is the juries role to decide if the bottle had the
Appellant/Petitioner pro se's name on it , it still does connect him to
the commission of the crime, and coorborating-witness Ms Powell, already
admitted to being inside the petioners house, which would make such an
item as a pill bottle readily available to her for puting her drugs in(?)
(It could be noted that a relative of hers is task force agent, and
'it is obvious that NOBODY ELSE was even CHARGED with these drugs)?
SEE: Appellants brief, States Reply and Dtst.Ct.of Apps Memorandum
s-
NOTE: Petitioner pro se does not have funds or the ability furnish
this Hon. Ct. with a copy of the States Ct . Reporters statement of facts
but the Trial Ct . and/or the Dist. Ct . of Appeals does have it available
should this Hon. Ct. order its presence be made and sent to this Ct.
for review of this Petition (PDR).
#5. As shown and argued in Petitioner pro se's Atty's Brief on Direct
Appeal, p's 7-9, the statutes are clear, and the facts in :fa Ifi i s case
as shown throughout this conviction, Appeal, and now PDR, Tx.$ £0. /§fj|3 B.14
and .17 demand "COORBORATING EVIDENCE". ...and. ..there is none.
The State is claiming ^through case citings^ that the clear meaning
and intent of the legislature when these statutes were passed, DO NOT
MEAN WHAT THEY SAY "?
The State is (and has succeeded) in completely reversing the legis
latures intent andmeaning (as the common citizen would understand it)?
The State say's; "£NxKXKN8XXK8Rx8xMXXSMX*fi*> 'the state must
establish that the accused's, connection with the substance was more than
just fortuitous'. Jones v. State, 963 S.W. 2d B26, B30 (TX .APP .TEXAR
KANA 1998,pet. ref'd) AND, IN EVENS, 202 S.W. 3d at 161 , the ct. of
crim.apps. said; 'possession required the state to provexxx the Appellant
exercised care',custody,control or management over the contraband..'
and, Applied a 14-factor affirmative link test to determine possession
when the defendant was not in exclusive control'....Evans , 202 S.W.
3d at 166; Jones, 963 S.W. 2d at 830......
SEE: PG. 14 & 15 STATES REPLY (FACTOR TEST)1-14)
#6. In the above mentioned FACTORS, the def. was not present when the
search was conducted, no idea if the contraband was in plain sight
or not, not readily accessable, alleged to be in oposite floorboard,
def. was not proven to be under the influencve of methamphetamines ,
did not possess anything, MADE NO INCRIMINATING STATEMENTS WHEN ARRESTED
and did not attempt to flee, made no furtive gestures, no oder of drugs,
only paraphernalia was alleged to be with the drugs (AND IN MRS POWELLS
BAG-PURSE-WHATEVER), Def did have permission to be driving the vehicle,
but it was not in his name, def. not found with any drugs/contraband,
and, lastly, the amount of money ($1,668.00 cash) is NOT an excessive
amount of cash for any business man to carry ... or .... anyone who feels
secure with it in their possession in this day and age
Therefore, there is no justification in applying said 14-Factor Test.
Nor, in alleging its existence alone applies to the Appellant/Petitioner
£>
BASED STRICTLY ON HEARSAY EVIDENCE ..... OR PRESUMPTIONS ..(?)
#7. TX.C.C.P. ART. 38.14 and 17 were not created by Texas Legislature
for the purpose of being or allowing judicial courts to circumvent
their clearly intended meaning; "A CONVICTION MAY NOT BE HAD UPON THE
TESTIMONY OF AN ACCOMPLICE UNLESS COORBORATED BY OTHER EVIDENCE TENDING
TO CONNECT THE DEFENDANT WITH THE OFFENSE COMMITTED" TX .C.C.P.ART .38 .14;
"AN ACCOMPLICE WITNESS IS A DISCREDITED WITNESS [B]ECAUSE HIS/HER TESTI
MONY ALONE CANNOT FURNISH THE BASIS FOR THE CONVICTION". "NO MATTER
HOW COMPLETE A CASE MAY BE MADE OUT BY AN ACCOMPLICE OR WITNESS, A CON
VICTION [IS NOT PERMITTED] UNLESS HE OR THEY ARE COORBORATED". SEE:
WALKER V STATE, 615 S.W. 2d 728, 731 (TX.CRIM .APP.1981 )(citations omitted).
* Mrs Powells testimony was the only evidence as to how the pill battles
came to be in the bag, and, the only evidence as to how the bag came to be
in the car. There was NO EVIDENCE as to how the methamphetamines came to
be in the pill bottle. AND, Mrs Powell"ADMITTED" to puting the bag in
the vehicle herself.(her own possessions, purse, tape-gun for theft use
and make-up were with the contraband as well) Applicants control of
that vehicle (NOT REGISTERED TO HIM) is no evidence that he knowingly
possessed its contents". DUE pRDCESS REQUIRES DISMISSAL & ACQUITTAL:
#8. The remedy for an appellate finding of insufficient evidence to
coorborate accomplice testimony IS ACQUITTAL since TEX.C.C.P. Art.38,17
(Vernon 1979) states; "IN ALL CASES WHERE, BY LAW, TWO WITNESSES, OR ONE
WITH COORBORATING EVIDENCE(CIRCUMSTANCES) , ARE REQUIRED TO AUTHORIZE A
CONVICTION, IF THE REQUIREMENT BE NOT FULFILLED, THE COURT "SHALL"(MANDATORY
LANGUAGE) INSTRUCT THE JURY TO RENDER A VERDICT OF ACQITTAL, AND
THEY ARE BOUND BY IfflE" INSTRUCTION." Sestric v. State, 1 S.W. 3d 901
924 (TEX.APP. Beaumont 1999) (U.S.C.A.-14 Due Process)
SUMMARY OF THE ARGUEMENT
[B]ecause there was no evidence to coorborate the testimony of an
accomplice witness, Applicant/Petitioner pro se's conviction should be
overturned and a judgement of acquittal entered. U.S.C.A.-14 Due Process;
The Fifth Court of Appeals and the Trial Court (196th Jud.Dist.)
denied the defendant and Appellate the right to due process of law by
using case citings that did not have merit to the Petitioners case & facts
of his case. SEE: pg. 3 herein, 14-FACTOR TEST HELD NO WATER and should
have been disregarded for its misuse and invalidity of substance to support
its use. N0 C00R0RATING EVIDENCE ; Tx .C.C.P.Art.38.14-17 (SHALL ACQUIT)
PRAYER FOR RELIEF
Wherefore, Petitioner pro se prays this Honorable court will exercise
its discretion and review this Petition for Discretionary Review and
give some TRUTH to the "INTERPRETATION" of TX.C.C.P. ART. 38.14&17 finding
that there was insufficient evidence to coorborate the accomplice witness
testimony against Appellant/Petitioner pro se herein, that there was not
even 1/4 of the 14-FACTOR TEST FACTORS that would even remotely apply
for use in affirming this Appeal, and, that the Fifth Appellate Court of
Dallas overeached in its allowance of the rule, and be remanded back to
the Fifth Dist. Ct. of Appeals for proper diposition of the case.
SO PRAYED THIS jS*h DAY OF $r.p\-&m bcT 2015.
Respectfully sub
PETITIONER PRO SE
JAMES EDWARD ROGERS
TDCJ# 1937467
CT. TERRELL/R3 unit
1300 F.M. 655
Rosharon, Tx . 77583
CERTIFICATE OF SERVICE
I, James Edward Rogers, Petitioner pro se herein, do state under penalty
•f perjury that a true copy of PETITION FOR DISCRETIONARY REVIEW has been
sent to the Texas Ct.of Crim. Appeals (Original & One Copy), as well as
a copy being sent to the Tx. Fifth Dist. Ct . of Appeals (Dallas Tx) at
the following addresses respectively; Abel Acosta, Clerk, Tx. Ct. of
Crim. Apps., P.O. BOX 1230B, Austin, Tx . 7B711 and; Tx . Fifth Dist, Ct
of Appeals, Clerk, DALLAS,TX.
ON THIS \Sfo DAY OF SpjplyjmV^erN 2015
/s/,
TITIONER PRO %{J (/
James Edward Rogers
TDCJ# 1937467
5.
FRIDAY, AUGUST2B, 2015
FRIDAY
ABEL ACQSTA, CLERK
C0UBB of CRfiMINAL APPEALS
PO BOX 12308
AUSTIN, TX 78711
RE: Trial Court Cause NO. 26576, Hunt County, TX
Fifth Court of Appeals NO. 05-14-00695-CR
Filing of Motion for ixtension of time to file PDR
Dear Honorable Clark, ;.-;";•'
Please find my Pro-Se Defendant's Motion for Extension of Time
to File Petition for Discretionary Review, including requesting; copies
of Court Records. Please File this Motion and bring it to the atten
tion of the Court.
tin 3uly 20, 2015 the Appeals Court (Fifth District at Dallas)
Affirmed my Judgement from the Trial Court. I did not receive the
notice in the Prison mailroom until August 8 2015 which told ma I had
until August 19, 2015 to prepare and File my PDR which was impossi
ble as I am disabled] legally blind, and have no way to do this an
my own, hence the need for additional time to file.
I also need copies of Court Records so that some other inmates
who may help me can read them and help me prepare a pro se PDR.
Can you .send me a list of court records available or send me the Co»rt
File, per Federal Gov At Rules as a Blind Person I should be able to g
get these free of charge.
I have also included a carbon copy of this letter for you to file
date and time stampoa&d return to me in the S.A.S.E. i am providing.
Thank you for your Assistance in this matter.
Siryterley
L
WM^LL.
fines Rogers, 3g*\#1937467
irrell Unit
1300 FM 655
Rosharon, TX 77583
°\
NO. __ ___
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
JAMES EDWARD ROGERS JR.
Us.
THE STATETHjF TEXAS
FROM APPEAL NO. 05-14-00695-CR
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 2B576
FIRST MOTION FOR EXTENSION OF TIME TO FILE
PETITION FOR DISCRETIONARY REvIEli)
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, James Edward Rogers Jr., Petitioner, and files this
Motion for ah Extension of Time of Ninety Days (90) days in which to
file a Petition for Discretionary Review.. In support of this Motion,
the Appellant shows *he Court the following:
I.
The Petitioner wa3 convicted in the 196th District Court of
Hunt County, Texas of the Offence possession of a controlled sub
stance, methapphetamine, in Cause No. 28576, Styled State of Texas
vs. James Edward Rogers Jr.. The Petitioner appealed to the Court of
Appeals Fifth District of taxes at Dallas. The Case was Affirmed on
July 20, 2015 but Petitioner did not receive his notice of the Court*s
Decision until the afternoon of Friday August 7, 2015 in the Prison
legal mail mailroom. The present deadline for filing the Petition
for Discretionary Review was August 19th, 2015 but Petitioner is
disabled, legally blind, and because of the delay in getting notice
and having to gat another inamta read and help him with this Motion
he begs the Court to allow this FIRST MOTION.
II.
As stated above, Petitioner's deadline for Filing his PDR
was August 19th, 2015, but he did not receive notice until Aiguat
7th, 2015. Since he is ftegally blind and indigent he has had to get
1
help from other inmates to assist with this first Motion.
Petitioner has NOT requested any Extension prior to this request.
III.
Petitioner's request for an extension of time is basad upon the
following FACTS: Petitioner was not informod of the decision of tha
Court of Appaela in Affirming hia case until the afternoon of Friday
august 7th, 2015. His attorney an the Appeal, Jotin S. Butler, has
informed Petitioner that he will not represent him an the Petition
for Discretionary Review.
IV.
Petitioner id requaating a Copy of the Appellate Record in order
that he may get help in perfecting hi6 PDR. Without these documents
Petitioner will be unable to adequately file s PDR.
V.
This Motion is NOT to hamper or delay, but is necessary because
Petitioner is lagally blind, is disabled, and is indigent and proceed
ing Pro Se. He nssds this time far lagal rasearch. Petitioner is
incarcerated and is limited to 2 hours a day, five days per week, in
the Prison Law Library, but as stated he is blind and hoe no eccesB
to Bralla Law Banks. He is totally dependent on help from other
inamtes.
UHEREFORE, Petitions? prays this Court grant this Motion and
Extend his time for the Deadline of Filing the Petition for Discret
ionary Review in Case WO. 06-1
O o -o
-» T3
* * *
In The 5th District
Court of Appeals of Texas
* *
James Edward Rogers
v.
The State of Texas
* * *
Appealed from the
196th District Court
Trial Court Cause No. 28576
APPELLANT'S BRIEF
John S. Butler
State Bar No. 03526150
700 Lavaca Street, Suite 1400
Austin, Texas 78701
Telephone (512) 472-3887
Facsimile (512)233-1787
Email butler@lawyer.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT IS NOT REQUESTED
a
IDENTITIES OF PARTIES AND COUNSEL
Appellant: James Edward Rogers, Jr.
Trial Counsel: Cariann Bradford Abramson
State Bar No. 24045366
POBox 1683
Forney, Texas 75126
972-552-2240
Appellee: The State of Texas
Appellant and Trial Counsel: George Calvin Grogan
State Bar No. 24050695
Assistant Criminal District Attorney
Office of the Hunt County District Attorney
Hunt County Courthouse, Fourth Floor
2507 Lee Street
Greenville, Texas 75401
903-408-4187
Trial Judge: The Honorable Steve Tittle
196th Judicial District Court
-2-
'•?
TABLE OF CONTENTS
Identity ofParties and Counsel •••2
Table of Contents ."3
Index of Authorities •••4
Statement Regarding Oral Argument ••-4
Statement of the Case •••4
Issues Presented •••5
Statement of the Facts •••5
Summary of the Argument .7
Argument •••°
Prayer for Relief ...10
Certificate of Compliance ...11
Certificate of Service ...11
n
INDEX OF AUTHORITIES
Texas Code of Criminal Procedure art. 38.14 ... 8
Walker v. State 615 S.W.2d 728 (Tex.Crim.App. 1981) ...8
Sestric v. State, 1 S.W.3 901 (Tex.App.-Beaumont 1999) .. .9
STATEMENT REGARDING ORAL ARGUMENT
Appellant is not requesting thatthe Court hear oral argument.
n
STATEMENT OF THE CASE
Appellant pled not guilty on Cause No.27,586 to Possession of a Controlled
Substance, Methamphetamine, in an amount of four grams or more but less than two
hundred grams, including any adulterants or dilutants, a second-degree felony,
enhanced with two prior felony convictions to Habitual Offender status. At trial,
Appellant was found guilty by the jury. At punishment, the jury assessed
punishment at life in prison.
At trial, Investigator Wesley Russell of the Greenville Police Department
testified that he stopped Appellant for failure to come to a complete stop at a stop
sign.
Appellant provided Investigator Russell an invalid driver's license. Appellant was
placed under arrest. An inventory search of the vehicle Appellant was driving
revealed bag, located in the front passenger foot well, containing a floral makeup
bag, a camera bag, prescription pill bottles, baggies containing methamphetamine,
and several syringes. The pill bottles contained marijuana, pills and
methamphetamine.
There were two passengers in the vehicle. Rachel Powell, the front
passenger, testified that she had put the aforementioned items in the vehicle, but
"2,0
claimed that this was at Appellant's request and that she was unaware of the content
of the bags.
Timothy Roberts, the back seat passenger was found to be having a seizure,
and was transported to the hospital.
ISSUES PRESENTED
There was no evidence to corroborate the testimony of the accomplice
witness.
STATEMENT OF FACTS
Appellant was convicted of possession of methamphetamine. There was no
evidence that Appellant knowingly possessed the methamphetamine, no evidence
that he put it in the containers in which they were found. There was no evidence that
he placed the methamphetamine in his vehicle. Indeed, the accomplice witness
testified that she brought the bag containing the methamphetamine to the car and
placed it ather feet. (RR vol.3 p.202). There is nothing to corroborate her statement
that she did this at Appellant's request. (RR vol.3 p.201). The accomplice, Rachel
-6-
n
Louise Powell, was - is - an admitted thief and forger (RR vol.3 p.194), who
admitted that she was planning to commit theft again, and who was found in
possession of a criminal instrument at the scene of the arrest (RR vol.3 p. 197).
The only evidence that might connect Appellant to tie crime, aside from his
presence in the vehicle, was "a brown-colored prescription bottle in the name of
James Rogers." (RR vol.3, p.102). Even this, his name on the bottle, appears
questionable, insofar as the jury, during its deliberations, asked to see the
prescription bottles (RR vol.4, p.45), and then asks for a magnifying glass. (RR
vol.4, p.46). Granting that it the jury's role to decide if the bottle had Appellant's
name on it, it does not connect him to the commission of the crime, any more than
his presence behind the wheel of the car into which the accomplice witness, Rachel
Louise Powell, admitted putting the bag containing the methamphetamine. (RR
vol.3 p.202). .!
SUMMARY OF THE ARGUMENT
Because there was no evidence to corroborate the testimony of an accomplice
witness, Appellant's conviction should be overturned and a judgment of acquittal
entered.
-7-
2J-
ARGUMENT
'A conviction may not be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed." Tex.C.Crim.Proc. Art. 38.14. "An accomplice witness is a
discredited witness because her or his testimony alone cannot furnish the basis for
the conviction. No matter how complete a case may be made out by an
accomplice witness or witnesses, a conviction is not permitted unless he or they
are corroborated." Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981)
(citations omitted).
Ms. Powell's testimony was the only evidence as to how the pill bottles
came to be in the bag, and the only evidence as to how the bag came to be in the
car. There was no evidence as to how methamphetamine came to be in the pill
bottle. Ms. Powell admitted putting the bag containing methamphetamine in the
vehicle. Appellant's control of that vehicle is no evidence that he knowingly
possessed its contents. By the same reasoning, his name on a bottle in her
possession is no evidence that he knowingly possessed that bottle or its contents.
[T]he remedy for an appellate finding of insufficient evidence to
corroborate accomplice testimony is acquittal since TEX. CODE
-8-
2,5
CRIM. PROC. ANN. art. 38.17(Vernon 1979) states: "In all cases
where, by law, two witnesses, or one with corroborating
circumstances, are required to authorize a conviction, if the
requirement be not fulfilled, the court shall instruct the jury to render
a verdict of acquittal, and they are bound by the instruction."
Sestric v. State, 1 S.W.3d 901, 924 (Tex.App.- Beaumont 1999)
ZJ\
PRAYER FOR RELIEF
WHEREFORE, Appellant prays this Court find that there was insufficient
evidence to corroborate the accomplice witness testimony against Appellant, reverse
the judgment and sentence of the trial court, and remand the case to the trial court
with instruction to enter a verdict of acquittal. Appellant further requests any and all
such other relief to which he may be entitled.
Respectfully submitted,
sSd&
John S. Butler
ATTORNEY FOR APPELLANT
700 Lavaca Street, Suite 1400
Austin, Texas 78701
Telephone (512) 472-3887
Facsimile (512)233-1787
STATE BAR #03526150
-10-
Z£
CERTIFICATE OF COMPLIANCE
As Attorney of Record for Appellant, I do hereby certify that this document
contains 1,187 words, as determined by Microsoft Word 2010, the computer
program used to prepare the document.
Date: February 20, 2015
JOHN S. BUTLER
Attorney for Appellant
CERTIFICATE OF SERVICE
As Attorney ofRecord for Appellant, I do hereby certify that a true and correct
copy of this Appellant's Brief was this date provided to the District Attorney of
Hunt County, Texas, via U.S. Mail to:
Hunt County District Attorney
2507 Lee Street, 4th Floor
Greenville, Texas 75401
Date: February 20, 2015
JOHN S. BUTLER
Attorney for Ap pelIant
-11-
e,6
IN THE COURT APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
JAMES EDWARD ROGERS
APPELLANT
v. CASE NO. 05-14-00695CR
THE STATE OF TEXAS,
APPELLEE
STATE'S REPLY BRIEF
On Appeal from the 196th Judicial District Court of Hunt County, Texas
Trial Court Cause No. 28,576, the Honorable Stephen R. Tittle, Judge
Presiding
NOBLE WALKER, JR.
District Attorney
Hunt County, Texas
G CALVIN GROGAN V
Assistant District Attorney
2507 Lee St.
th
Hunt County Courthouse, 4 Floor
Greenville, TX 75401
(903)408-4180
FAX (903) 408-4296
cgrogan@huntcounty.net
State Bar No. 24050695
^7
TABLE OF CONTENTS
TABLE OF CONTENTS 2
INDEX OF AUTHORITIES 3
STATEMENT OF THE CASE 5
ISSUES PRESENTED 5
SUMMARY OF THE STATE'S ARGUMENTS 5
STATEMENT OF FACTS 6
STATE'S RESPONSE TO POINT OF ERROR ONE 9
STANDARD OF REVIEW 9
EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE
APPELLANT KNEW 23 GRAMS OF METHAMPHETAMINE
WAS IN HIS PRESCRIPTION PILL BOTTLE 12
STATE EXHIBIT NO 2-C 15
PRAYER 16
CERTIFICATE OF COMPLIANCE 17
CERTIFICATE OF SERVICE 17
*LP
INDEX OF AUTHORITIES
Federal Cases
Jackson v. Virginia, 433 U.S. 307, 319, 99 S.Ct. 2781 (1979) 9
Texas Cases
Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App. - Austin 2002, no pet) 11
Dennis v. State, 151 S.W.3d 745, 748 (Tex. App. - Amarillo 2004, pet.
refd) 11
Duffy. State, 546 S.W.2d 283, 288 (Tex. Crim. App. 1977) 14
State v. Evans, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) 10,13,15
Geesav. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991) 10
Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App. - Corpus Christi 2002) 13
Jones v. State, 963 S.W.2d 826, 830 (Tex. App. - Texarkana 1998, pet.
refd) 13
Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) 11,12
Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) 12
Simmons v. State, 205 S.W.3d 65, 72 (Tex. App. - Fort Worth 2006) 11
State v. Stubblefield, 79 S.W.3d 171, 174 (Tex. App. - Texarkana 2002) 14
State v. Swearingen, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) 13,15
Taylor v. State, 106 S.W.3d 827, 831-2 (Tex. App. -Dallas 2003, no pet) 13
Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) 10
Texas Statutes
Tex. Pen. Code Ann. Sec. 6.01(b) (West 2012) 10
Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 2014) 11
Tex. Health & Safety Code Ann. Sec. 481.112(b) (West 2012) 10
Tex. Health & Safety Code Ann. Sec. 481.002(a)(38) (West 2012) 10
ai
IN THE COURT APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
JAMES EDWARD ROGERS
APPELLANT
CASE NO. 05-14-00695CR
THE STATE OF TEXAS,
APPELLEE
STATE'S REPLY BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the State of Texas, Appellant, in this appeal from
Cause No. 28,576 in the 196th Judicial District Court in and for Hunt
County, Texas, Honorable Stephen R. Tittle, Presiding, now before the Fifth
District Court of Appeals, and respectfully submits this its brief to the Fifth
District Court of Appeals.
3o
STATEMENT OF CASE
In Cause Number 28,576, Appellant was indicted on October 26,
2012, for Possession of a Controlled Substance, namely Methamphetamine,
in an Amount Greater than Four Grams But Less Than Two Hundred Grams.
CR Vol.l.p.22. Appellant entered a plea of not guilty on December 5, 2012,
and the case was tried by a jury on May 12, 2014. CR Vol.l.pp.6-8. On
May 14, 2014, the jury found Appellant guilty as charged and sentenced him
to life in the Texas Department of Corrections. CR Vol.1.p. 126. The
Appellant filed written Notice of Appeal on May 28, 2014. CR Vol.1.p. 141.
ISSUES PRESENTED
Issue 1. Without Alleged Co-Actor's Testimony, Was the evidence
legally sufficient to support a conviction for Possession of a Controlled
Substance, Namely Methamphetamine, Penalty Group 1, In An Amount
Greater Than Four Grams But Less Than Two Hundred Grams?
SUMMARY OF THE ARGUMENT
1. Even assuming Rachel Powell was a co-actor and her testimony was
considered credible by the jury, without her testimony a rational trier of
fact could have found the elements for Possession with Intent to Deliver a
Controlled Substance, namely Methamphetamine, Penalty Group One, In
31
an Amount Greater than Four Grams But Less Than Two Hundred
Grams, proven beyond a reasonable doubt. Besides other common
affirmative links, twenty three grams of methamphetamine was found
inside a prescription pill bottle with the Appellant's name on it.
Statement of Facts
On March 20, 2012, Appellant's vehicle was stopped by an unmarked
Greenville Police Department ("GPD") vehicle for running a stop sign. RR
Vol.3.p.37. There were three people and a dog inside Appellant's vehicle.
RR Vol.3.p.40. Upon contact, GPD Narcotics Detective Wesley Russell
encountered Appellant behind the wheel, Rachel Louise Powell in the
passenger seat, Timothy Roberts and a pit bull were in the rear seat. RR
Vol.3.p.41. The other vehicle occupants were able to provide identification.
RR Vol.3.p.43. Detective Russell requested backup because Mr. Roberts
had an outstanding warrant. RR Vol.3.p.44. When Appellant failed to
produce his Texas driver's license, Det. Russell placed him under arrest and
inside GPD Officer Brandon West's vehicle. RR Vol.3.p.44. GPD Officer
Leigh Dixon transported Mr. Roberts from the scene once he began having
seizures. RR Vol.3 .p.44.
Detective Russell began conducting an inventory search of
Appellant's vehicle. RR Vol.3.p.44. During the inventory, Det. Russell
32
seized as contraband several items from the vehicle. RR Vol.3.p.58. A
prescription bill bottle containing marihuana was seized from the vehicle.
RR Vol.3.p.59; State Exhibit No. 3-A. A digital scale was seized from the
vehicle. RR Vol.3.p.64; State Exhibit No. 3-B. A butane torch was seized
from the vehicle. RR Vol.3.p.65; State Exhibit No. 3-C. A Walmart sack
containing a large glass pipe with residue inside a glove was seized from the
vehicle. RR Vol.3.p.72; State Exhibit No. 3-D. A black bag containing a
package of rolling papers was seized from the vehicle. RR Vol.3p.77; State
Exhibit No. 3-E. A plastic bag full of syringes was seized from the vehicle.
RR Vol.3.p.78; State Exhibit No. 3-F. A floral makeup bag was seized from
the vehicle. RR Vol.3.p.l21; State Exhibit No. 3-G. The butane torch and
large glass pipe were found inside a black Case Logic case. RR Vol.3.p.122;
State Exhibit No. 3-1. A plastic bag full of smaller baggies was seized from
the vehicle. RR Vol.3.p.82; State Exhibit No. 3-H. Most of the drug
paraphernalia items were found inside a laundry mesh bag. RR Vol.3.p.103;
State Exhibit No. 3-J. Detective Russell testified that all of these seized
items are commonly used in methamphetamine and marijuana usage,
methamphetamine distribution and production. RR Vol.3.pp.66, 75, 83.
Three other baggies containing a suspected controlled substance were
also found inside the floral makeup bag, which was seized from the vehicle's
V
front passenger side floorboard. RR Vol.3.pp.86, 93-4,99; State Exhibit Nos.
2-B-D. The three baggies were found inside a small bag within a larger
bag. RR Vol.3.p.95; State Exhibit Nos. 3-J-K. These baggies were
submitted to the Department of Public Safety ("DPS") Crime Lab for testing
on September 5, 2012. RR Vol.3.p.92. The baggies were picked up and
returned to GPD on October 30, 2012. RR Vol.3.p.l70. After being tested at
the DPS Crime Lab, it was determined State Exhibit No. 2-B was 1.66
grams of methamphetamine, State Exhibit No. 2-C was 23 grams of
methamphetamine, and State Exhibit No. 2-D was .44 grams of
methamphetamine. RR Vol.3.p.184. State Exhibit No.2-C was a
prescription pill bottle with the Appellant's name on it.
After concluding his inventory search, Detective Russell arrested
Appellant for being in Possession of Marijuana in an amount less than 2
ounces, Possession of Controlled Substance Penalty Group 3 Less Than 28
Grams, and Possession of a Controlled Substance Penalty Group 1 More
Than 4 Grams But Less Than 200 Grams. RR Vol.3.p. 109. The rear seat
passenger, Mr. Roberts, was not charged with any of the drug-related
offenses because Det. Russell never noticed any furtive movements prior to
the traffic stop and lack of proximity to the contraband. RR Vol.3.p. 110-11.
Ms. Powell, the front seat passenger and closest in proximity to the drugs,
If
was also not charged with any of the drug-related offenses. RR Vol.3.p. 112.
Detective Russell testified Ms. Powell cooperated at the scene and indicated
the drugs belonged to the Appellant. RR Vol.3.pp.l 12, 150. Most
importantly, Det. Russell testified that Appellant's name appeared on
contraband items within the large bag. RR Vol.3.p.l 12.
ARGUMENT
1. Without Alleged Co-Actor's Testimony, Was the Evidence Legally
Sufficient to Prove Appellant Possessed a Controlled Substance in
Penalty Group One, Namely Methamphetamine, In An Amount
Greater Than Four Grams But Less Than Two Hundred Grams?
a. Standard of Review
The standard of review for legal sufficiency is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781
(1979). "When deciding whether evidence is [legally] sufficient to support a
IS
conviction, a reviewing court must assess all the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could
find the essential elements of the crime beyond a reasonable doubt." State v.
Evans, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Finally, the court
must consider all of the evidence submitted before the jury, including
inadmissible evidence. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim.
App. 2006).
The standard of review is the same for both direct evidence and
circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex.
Crim. App. 1991). The State is no longer required to disprove reasonable
alternative hypothesis for the placement of contraband. Id. at 165. A person
commits an offense if the person knowingly possesses a controlled
substance. Tex. Health & Safety Code Ann. Sec. 481.112(b) (West
2012). Possession means actual care, custody, control or management. TEX.
Health & Safety Code Ann. Sec. 481.002(a)(38) (West 2012).
Possession is a voluntary act if the possessor knowingly obtains or receives
the thing possessed or is aware of his control of the thing for a sufficient
time to permit him to terminate his control. Tex. Pen. Code Ann. Sec.
6.01(b) (West 2012).
10
36
Under Code of Crim. Proc. Art. 38.14, a conviction cannot be had
upon testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the
offense. Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 2014). "It is
well established that a challenge of insufficient corroboration of an
accomplice witness's testimony is not the same as a challenge of legally
insufficient evidence to support the verdict." Simmons v. State, 205 S.W.3d
65, 72 (Tex. App. - Fort Worth 2006); Dennis v. State, 151 S.W.3d 745, 748
(Tex. App. - Amarillo 2004, pet. refd). To determine the sufficiency of
accomplice-witness corroboration, the testimony of the accomplice is
eliminated and the appellate court will look for other inculpatory evidence
that tends to connect the accused to the commission of the offense, even if it
does not directly link the accused to the crime. Cantelon v. State, 85 S.W.3d
457, 461 (Tex. App. - Austin 2002, no pet). "The tends-to-connect standard
does not present a high threshold." See id. "There is no set amount of non-
accomplice corroboration evidence that is required for sufficiency purposes
under the accomplice-witness rule." Malone v. State, 253 S.W.3d 253, 257
(Tex. Crim. App. 2008).
11
?)
"Even apparently insignificant incriminating circumstances may
sometimes afford satisfactory evidence of corroboration." Id. "Cumulative
evidence of suspicious circumstances can be sufficient evidence that tends to
connect he accused to the alleged offense even if none of the circumstances
would be sufficient individually." Id. "When there are two permissible
views of the evidence (one tending to connect the defendant to the offense
and the other not tending to connect the defendant to the offense), appellate
courts should defer to that view of the evidence chosen by the fact-finder."
Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The Court
of Criminal Appeals held that when reviewing non-accomplice testimony, it
is important to look at the totality of the evidence, rather than as isolated,
unrelated incidents. Id. at 511.
b. Circumstantial Evidence Was Legally Sufficient to Prove
Appellant Knowingly Possessed 25 Grams of
Methamphetamine
The State was required to prove on or about March 20l ,2012, in Hunt
County, Texas, Appellant knowingly or intentionally possessed
Methamphetamine in an amount more than four grams. Since the
12
3t
methamphetamine was not found dri the Appellant, the State used
circumstantial evidence to connect the Appellant to the methamphetamines.
Possession required the State to prove the Appellant exercised care,
custody, control, or management over the contraband, and the State was
required to prove the Appellant knew it was contraband. Evans, 202 S.W.3d
at 161. The State must establish that the accused's connection with the
substance was more than just fortuitous. Jones v. State, 963 S.W.2d 826, 830
(Tex. App. - Texarkana 1998, pet. refd). Since Appellant was found in a
vehicle belonging to another, the State must prove through circumstantial
evidence the Appellant knowingly possessed methamphetamine. Jones, 963
S.W.2d at 830. This Court as well as others has acknowledged the theory of
joint possession. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App. -
Dallas 2003, no pet.) (control over the contraband need not be exclusive, but
can be jointly exercised by more than one person). When narcotics are —
secreted, the State must address whether the defendant knew of existence of
secret place and its contents. Jenkins v. State, 76 S.W.3d 709, 712 (Tex.
App. - Corpus Christi 2002).
In Evans, the Court of Criminal Appeals applied a 14-factor
affirmative link test to determine possession when the defendant was not in
exclusive control. Evans, 202 S.W.3d at 166; Jones, 963 S.W.2d at 830
13
n
(holding that the affirmative link between defendant and the contraband
need not be so strong as to exclude every other reasonable hypothesis except
the Defendant's guilt). The 14 factor test: 1) the defendant's presence when
a search is conducted, 2) whether the contraband was in plain view, 3) the
defendant's proximity to and the accessibility of the narcotic, 4) whether the
defendant was under the influence of narcotics when arrested, 5) whether the
defendant possessed other contraband or narcotics when arrested, 6) whether
the defendant made incriminating statements when arrested, 7) whether the
defendant attempted to flee, 8) whether the defendant made furtive gestures,
9) whether there was an odor of contraband, 10) whether other contraband or
drug paraphernalia were present, 11) whether the defendant owned or had
the right to possess the place where the drugs were found, 12) whether the
place where the drugs were found was enclosed, 13) whether the defendant
was found with a large amount of drugs, and 14) whether the defendant
possessed weapons or a large amount of cash. State v. Stubblefield, 79
S.W.3d 171, 174 (Tex. App. - Texarkana 2002). When car occupants give
conflicting statements about relevant matters it can be a factor helping to
establish an affirmative link. Duffv. State, 546 S.W.2d 283, 288 (Tex. Crim.
App. 1977). Using these fourteen factors, the Court of Criminal Appeals
declined to analyze each link in isolation in order to rely on alternative
14
^D
inferences for almost every piece of evidence. Evans, 202 S.W.3d at 164;
see Swearingen, 101 S.W.3d at 97 (while each piece of evidence lacked .
strength in isolation, the consistency of the evidence and the reasonable
inferences drawn therefrom, provide the girders to strengthen the evidence
and support a rational jury's finding the elements beyond a reasonable
doubt).
1. State Exhibit No. 2-C
Disregarding the testimony of Ms. Powell, there were several
affirmative links between the Appellant and the drugs. As the driver,
Appellant exercised more control over the vehicle than the passengers. This
was not some accident where Appellant got into another person's vehicle
that contained drugs - Det. Russell testified he had seen Appellant drive that
vehicle multiple times. RR Vol.3.p.139. Appellant was operating a vehicle
without proper identification, a way to possibly conceal his identity should
he get stopped with drugs in the vehicle. The Appellant was in close
proximity to the bags of methamphetamine. Appellant was present when the
contraband was found. RR Vol.3.p.56, 59. Besides the methamphetamines,
there were lots of other drug paraphernalia present in the vehicle. A butane
torch, syringes, a digital scale, plastic baggies, a glass pipe with residue, and
prescription tablets were all found in a bag where the methamphetamine was
15
if
found. A prescription pill bottle similar to State Exhibit No. 2C contained
marihuana. However, the strongest affirmative link between the Appellant
and the methamphetamines was State Exhibit No. 2-C.
State Exhibit 2-C was the only exhibit the jury asked to review while
in deliberations, along with a magnifying glass. CR Vol.1.pp.116-18.
Detective Russell could have charged Ms. Powell with possession of a
controlled substance, but he did not. Detective Russell could have
requested DNA testing or Fingerprint testing on the seized evidence, but he
did not. Detective Russell could have attempted a custodial interview of the
Appellant to get incriminating statements, but he did not. Detective Russell
did not do any of the investigative steps just mentioned because he saw
Appellant's name written on the prescription pill bottle that contained 23
grams of methamphetamines.
PRAYER
Appellant's trial was without prejudicial error. The State prays
that Appellant's conviction and sentence be affirmed.
Respectfully submitted,
16
m
NOBLE DAN WALKER, JR.
District Attorney
Hunt County, Texas
I
G CALVIN GROGAN V
Assistant District Attorney
P. O. Box 441
4th Floor, Hunt County
Courthouse
Greenville, TX 75403
State Bar No. 24050695
(903) 408-4180
FAX (903) 408-4296
CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(3)
Relying on Microsoft Word's word count feature used to create the
State's Reply Brief, I certify that the number of words contained in this brief
is 3,039 and the typeface used is 14Font.
G CALVIN GROlGAN V
Assistant District Attorney
CERTIFICATE OF SERVICE
A true copy of the State's brief has been mailed via first-class mail
to John S. Butler, Appellant's attorney of record, today, March 24,
2015, pursuant to Texas Rules of Appellate Procedure. ^
•0J^
G CALVIN GROGAN V
Assistant District Attorney
17
^
Affirm and Opinion Filed July 20, 2015
In The
€ourt of Appeals
iFtftrj district of (teas at Dallas
No. 05-14-00695-CR
JAMES EDWARD ROGERS, JR., Appellant
V. '
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 28576
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Brown, and Justice Stoddart
Opinion by Chief Justice Wright
A jury found appellant James Edward Rogers Jr. guilty of possession of a controlled
substance, methamphetamine, in the amount of four grams or more, but less than two hundred
grams. After finding the enhancement paragraphs for two prior felony convictions true, the jury
assessed punishment of life imprisonment. In a single issue, appellant challenges the sufficiency
of accomplice-witness corroboration. We affirm the trial court's judgment.
I. BACKGROUND
Detective Wesley Russell, a narcotics investigator for the Greenville Police Department,
testified that on March 20, 2012, he stopped a.Ford Escape for failing to stop at a stop sign.
There were three individuals and a dog inside the vehicle: appellant was driving, Rachel Powell
was in the front passenger seat, and Timothy Roberts and a pit bull were in the back seat. Upon
confirmation that appellant did not have a valid driver's license, Russell requested identification
for everyone in the vehicle and discovered that Roberts had an outstanding arrest warrant.
Russell called for assistance and Detective Jason Smith, Officer Brandon West, and Officer
Leigh Dixon arrived at the scene.
Roberts was placed in Dixon's marked police car to be transported to jail on his
outstanding arrest warrant but when Roberts began having a seizure, Dixon drove him to the
hospital emergency room instead. Russell arrested appellant for driving without a valid driver's
license and placed him in West's patrol car. Russell then asked Powell to step out of the vehicle
so he could conduct an inventory search of the vehicle before impounding it. Animal control
was contacted to pick up the dog.
Russell testified that during his search of the vehicle, most of the items seized were inside
various bags inside a mesh laundry bag that was located on the front passenger floorboard, right
against the center hump. Russell found a floral makeup bag containing a butane torch and some
glass pipes, a camera case containing a glass pipe inside a glove, a baggie containing syringes, a
small black Case Logic zipper bag containing digital scales, a plastic bag containing smaller
plastic bags, a plastic bag containing pills and an unlabeled prescription bottle containing
marijuana, a small baggie containing 0.44 grams of methamphetamine, a small metal canister
containing 1.66 grams of methamphetamine, and a prescription bottle with appellant's name on
the label containing 23 grams of methamphetamine. Russell testified that the baggie, metal
canister, and prescription bottle containing methamphetamine were packaged and sent to the
Department of Public Safety Laboratory for analysis.
Russell explained that he did not arrest Roberts for possession of the narcotics because
Russell did not observe Roberts making any furtive movements once Russell initiated the traffic
stop and because Roberts was not in proximity to the drugs. Russell also stated that he did not
-2-
Rogers, James Edward, Jr. v. State
Combined Opinion