ACCEPTED 06-15-00079-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/12/2015 3:52:03 PM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA FILED IN 6th COURT OF APPEALS BOBBY JOE EVENS, § TEXARKANA, TEXAS APPELLANT § 8/12/2015 3:52:03 PM § DEBBIE AUTREY Clerk v. § Nos. 06-15-00079-CR § § THE STATE OF TEXAS, § APPELLEE §
STATE'S BRIEF
FROM THE 196TH JUDICIAL DISTRICT COURT HUNT COUNTY, TEXAS
TRIAL CAUSE NUMBER 27,388 THE HONORABLE J. ANDREW BENCH, JUDGE PRESIDING
NOBLE DAN WALKER, JR. District Attorney Hunt County, Texas
KELI M. AIKEN First Assistant District Attorney P. 0. Box 441 4111 Floor Hunt County Courthouse Greenville, TX 75403 kaiken@huntcounty .net (903) 408-4180 NO ORAL ARGUMENT FAX (903) 408-4296 REQUESTED State Bar No. 24043442 TABLE OF CONTENTS
Table of Contents ........................................................................................................... 2
Index of Authorities ................................................................................................... 3-4
Statetnent of the Case ................................................................................................. 5
Issues Presented .................................................................................................... 7-22
1. Even if the Appellant was entitled to an accomplice witness insttuction, the error was harmless because overwhelming corroborating evidence showed proof of Appellant's guilt beyond a reasonable doubt.. ............................... 7-15
2. The evidence was legally sufficient to prove Appellant guilty of Manufacture I Delivery of Cocaine as alleged in the indictment. ................................... 15-22
Prayer ........................................................................................................................ 23
Certificate of Service ................................................................................................ 24
Certificate of Compliance with Rule 9.4 .................................................................. 24
2 INDEX OF AUTHORITIES STATE CASES:
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) .................................... 6
Chambers v. State, 711 S.W.2d 240,245-47 (Tex. Crim. App. 1986) .............. 16-17
Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996) ............................... 16
Cocke v. State, 201 S. W.3d 744, 748 (Tex. Crim. App. 2006) ................................. 6
Dewbeny v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), ce1i. denied, 529 U.S. 1131 (2000) ............................................................................................................. 16
Fernandezv. State, 805 S.W.2d451, (Tex. Crim. App. 1991) ......................... 16-17
Herron v. State, 86 S.W.3d 621,631 (Tex. Crim. App. 2002); ............................... 6
Hines v. State, 978 S.W.2d 169, 172 (Tex. App.-Texarkana, no pet.) .................. 16
Johnson v. State, 23 W.W.3d 1, 7 (Tex. CrimApp. 2002) ................................. 15-16
Jones v. State, 195 S.W.3d 279, 290 (Tex. App.-Ft. Wmih 2006, pet. ref d) ....... 6
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) ......................... 16
Smith v. State, 332 S. W.3d 425, 439 (Tex. Crim. App. 2011) .................................. 6
Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) ......................... 16
Watson v. State, 204 S.W.3d 404,415 (Tex. Crim. App. 2006) .............................. 16
STATE STATUTES:
TEX. C. CRIM. PRO. ART. 38.14 (Vernon 2015) ....................................................... 6
TEX. PEN. C.§ 1.07(A)(39) (VERNON 2015) ............................................................. 17
TEX. PEN. C.§ 6.01(B) (VERNON 2015) .................................................................... 17
3 TEX. CONT. SUBST. ACT§ 481.112 (VERNON 2015) ................................................ 17
4 IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA
BOBBY JOE EVENS, § APPELLANT § § v. § Nos. 06-15-00079-CR § § THE STATE OF TEXAS, § APPELLEE §
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the State of Texas, Appellee, in this appeal from Cause No. 27,388 in the I 96th Judicial District Comi in and for Hunt County, Texas, Honorable J. Andrew Bench, Presiding, now before the Sixth District Comi of Appeals, and respectfully submits this its brief to the Comi in suppmi of the judgment of sentence in the court below.
5 SUMMARY OF THE STATE'S ARGUMENT
Even if the trial court should have submitted an accomplice witness
insttuction, failure to do so did not result in egregious harm where Appellant
admitted to every element of the offense, two officers observed the dtug
transaction, and two additional officers searched both Appellant and Smith and
recovered the money and cocaine. The reliable and credible non accomplice
witness testimony and evidence in this case was convincing and clearly showed
Appellant's guilt as well as tended to connect him to the offense.
Fmihermore, each and every required element of the offense of
Manufacture I Delivery of a Controlled Substance was proven beyond a
reasonable doubt. The evidence was legally sufficient and suppmied the jury's
verdict.
Appellant's arguments are overcome by the evidence showing his clear
guilt in this matter, and his conviction should be affirmed.
6 STATE'S RESPONSE TO POINTS OF ERROR ONE
Even if the Appellant was entitled to an accomplice witness instruction, the error was harmless because overwhelming corroborating evidence showed proof of Appellant's guilt beyond a reasonable doubt.
Argument and Authorities
An accomplice witness at law is one who can be charged with the same
offense as the defendant or a related lesser-included offense. Cocke v. State, 201
S.W.3d 744, 748 (Tex. Crim. App. 2006). When a witness is an accomplice as a
matter of law, the trial comi is required to submit an miicle 3 8.14 inst1uction to
the jury. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); TEX.
CODE CRIM. PRO. ART. 38.14 (Ve1non 2015). If a required accomplice witness
inst1uction is omitted, and Appellant did not object to the charge or request
submission of the inst1uction, then the appellate comi looks at the record to
determine if the error caused egregious hann. Herron v. State, 86 S.W.3d 621,
631 (Tex. Crim. App. 2002); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) (op. on reh'g).
Under the egregious harm standard, the omission of an accomplice witness inst1uction is generally harmless unless the corroborating (non-accomplice) evidence is 'so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.
Jones v. State, 195 S.W.3d 279, 290 (Tex. App.-Ft. Wmih 2006, pet. ref d);
Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). 7 In determining the sufficiency of corroborating evidence, the court
eliminates the testimony of the accomplice witness and examines all other
evidence and testimony looking for the reliability and believability as well as the
tendency to connect Appellant to the crime. Hall v. State, 161 S.W.3d 142, 149-
150 (Tex. App.-Texarkana 2005, pet. ref' d).
A. Appellant admitted his guilt to this crime as part of his prior testimony in a federal case.
There is no reason to doubt the reliability or believability of Appellant's
prior testimony that admitted to the elements of this crime. The ce1iified
transcript was published to the jury. SE22. Fmihermore, the transcript tends to
connect Appellant to this offense in that on May 21, 2013 in a co-conspirators
federal trial, Appellant testified:
1.) his most recent employment included roofing and selling d1ugs;
2.) he was distributing drugs in Hunt County, Greenville, Texas;
3.) he sold crack cocaine;
4.) he explained how 3.5 grams was a typical sell but he also sold in 7 gram amounts and called the 7 gram sell a "Vick;"
5.) he delivered crack cocaine to customers in Greenville at convenience stores in town;
6.) he was stopped after meeting with Robert Lewis Smith and had over $1,000.00 seized fi·om him;
7.) that day he had met with Smith (whom he calls Emory) at the store;
8 8.) he identified a photo of Smith and said he calls him Emory because Smith lives in Emory, Texas;
9.) he also said he was talking about drug sales from February 2010 through September 2011;
10.) he identified his house on Pepperport street;
11.) he identified his truck that he used to deliver drugs on several occasiOns;
SE22. Appellant implicates himself as a drug dealer who sold cocaine to Smith
in up to 7 gram amounts during the timefi·ame to include November 9, 2010 at
various convenience stores in Greenville, Hunt County, Texas while driving his
truck. I d. A reasonable inference from this testimony shows that Appellant
admitted to every element of this offense in his prior federal testimony.
B. Inv. Warren Mitchell told the jury how he saw what he believed to be a narcotics transaction between Appellant and Smith and the steps he took to make sure the drug dealer, Appellant, and the buyer, Smith were taken into custody.
As a professional narcotics officer with a specialized level of training, Inv.
Mitchell's detailed observations and testimony are inherently reliable and
believable. Inv. Mitchell explained his credentials as a peace officer. RRS/33-34.
He was a peace officer since 1988, holds a master peace officer ce1iification, and
is an inst1uctor for the Texas Commission on Law Enforcement and Education.
Id. Inv. Mitchell also has special additional certification from the National
Alliance of Drug Endangered Children to teach courses. Id. Inv. Mitchell
9 completed the basic Drug Enforcement Administration narcotics officers training
in 2008 and has numerous continuing education hours as well as work with the
Texas Narcotics Officer's Association. RR5/34-35. He has also worked as an
instructor in narcotics investigation and has personally investigated hundreds of
cases over the last six years. !d.
At trial Inv. Mitchell identified Appellant for the jury. RR5/35, lines 7-17.
On November 9, 2010 Inv. Mitchell saw Appellant driving his blue and tan ford
pickup truck. RR5/35, lines 18-25. Appellant drove from a house he stayed at to
a convenience store called NAT 24 on the comer of Sayle and Joe Ramsey
Boulevard in Hunt County, Texas. RR5/36-37. Two other narcotics
investigators, Inv. Jason Whitten and Inv. Vic Robe1is, were riding with Inv.
Mitchell. RR5/36, lines 10-14.
When Appellant arrived at the NAT 24 he pulled in on the west side close
to the nmihwest cmner of the store. RR5/37, lines 3-7. Appellant did not get out
of the car, go into the convenience store or get gas that day. RR5/37-66. Inv.
Mitchell saw a white ford vehicle next to where Appellant parked. RR5/3 7, lines
20-25. He watched the Hispanic female driver get out and go into the store and
the black male passenger (Robert Lewis Smith, Jr.) get out of the front seat, walk
around the back of his car and get into Appellant's front passenger seat. RR5/37-
38. Smith stayed in Appellant's truck less than two minutes. RR5/38, lines 4-7.
10 Inv. Mitchell testified that based on his training and experience, he believed a
drug transaction had just occmTed between Appellant and Smith. RR5/38, lines
14-16.
Based on what he observed, Inv. Mitchell called Lt. Cole to stop Appellant
when he left the store and called patrol officers to come and stop Smith when he
left. RR5/38-39. He was around one hundred yards from Appellant when he
observed the drug transaction. RR5/60-61. Inv. Mitchell stayed and watched Lt.
Cole come and follow Appellant to make a traffic stop. RR5/38-39. Lt. Cole
stmied following Appellant right after the buy occurred. !d. Inv. Mitchell also
stayed and watched Officer Larry Henderson and Officer Phillip Spencer
confront Smith. Id.
Inv. Mitchell also showed the jury photos that showed his interaction with
other members ofhis drug conspiracy. SE8-21; RR5/51-56. The photos showed
Appellant driving the same truck as the one he was arrested in for this crime.
SE 13-17. They also showed him at a car wash and his vehicle at the house on
Pepperport. SE 18-21. The car wash photo is significant because Appellant did
drug deals there and in fact had previously done deals there with Smith. SE4;
SE 18-19. Inv. Mitchell also testified to the submission of the drugs to the lab
and identified the drugs that were admitted as State's Exhibit 1. SE1; RRS/46-48
and pp.63-66.
11 C. Inv. Jason Whitten told the jury that what he saw was a drug transaction.
Inv. Whitten's training and experience coupled with his testimony show
that he was reliable and believable witness. Inv. Whitten has been a peace officer
for almost twenty years and is currently working as a narcotics task force officer
for the Drug Enforcement Administration federal task force. RR5/113, lines 4-11.
He has worked as narcotics investigator for eight years and has attended several
training classes, narcotics schools as well as training at Quantico. RR5/113, lines
16-20. He has worked undercover as a narcotics officer and witnessed drug
buys. RR5/113-114.
On November 9, 2010 Inv. Whitten was riding with Inv. Mitchell and
Robe1is and they saw Appellant driving his truck in Greenville, Texas from near
his residence to the NAT 24. RR5/114, lines 3-20. Inv. Whitten saw Smith's car
and Appellant's truck next to it. RR5/114-115. He watched Smith get out of the
car and get in Appellant's truck. RR5/115, lines 9-10. Smith was in Appellant's
truck around a minute. !d. Based on his training and experience Inv. Whitten
believed a narcotics deal had just occmTed. RR5/115, lines 11-20. Inv. Mitchell
called for officers to pull over Appellant and Smith. RR5/115-116. He waited
with Inv. Mitchell until Lt. Cole and Officer Henderson mTived. !d.
12 D. Lt. Will Cole explained to the jury how he found Appellant leaving the scene and what items he discovered during Appellant's arrest.
Lt. Will Cole is an expert in law enforcement who testified to his
credentials and experience who testified reliably and believably about his
interaction with Appellant on the date of the crime. Lt. Cole has worked as a
peace officer for twenty-eight years. RR5/133, lines 7-10. He has held
numerous positions within the depmiment including supervisory roles such as
both the criminal investigations lieutenant and now as patrol commander.
RR5/132-133. On November 9, 2010 he was called to assist in a narcotics
investigation at the request ofinv. Mitchell. RR5/133-134. Lt. Cole identified
Appellant as the person he contacted in a traffic stop about a block and a half
from the convenience store. !d. Lt. Cole anived at the scene as Appellant was
pulling out ofthe convenience store. RR5/134, lines 11-16. Lt. Cole searched
Appellant after he took him into custody and found $1030.00 RR5/134, lines 5-
13. Lt. Cole made a prope1iy receipt detailing the specific denominations of cash
seized from Appellant as well as the total amount. RR5/135-136. Photographs
of the items recovered were admitted and published to the jury. !d.; SE23-26. In
the money collected from Appellant that day Lt. Cole recovered at least ten $20
bills. RR5/136, lines 19-22.
13 E. Officer Larry Henderson told the jury how he came into contact with Smith that day and Officer Henderson recovered cocaine where he saw Smith take furtive action as he pulled up behind him.
Officer Lany Henderson responded in his marked vehicle to the NAT 24
on November 9, 2010 at the request ofinv. Mitchell. RR5/122-123. As he
pulled in behind Smith's car he saw Smith "make a distinct stuffing motion to the
left side in between the driver's seat and the passenger seat." RR5/123, lines 12-
24. Officer Henderson said he felt Smith was "concealing narcotics" based on
the evasive actions Smith took as the officer anived. !d. A female driver was in
the store when Officer Henderson anived but Smith and a back seat passenger
were in the car. RR5/123-124. Officer Henderson watched for fmiher
movement in the car and tried to keep the occupants from fmiher concealing the
items in the car by removing everyone from the vehicle. RR5/124, lines 10-23.
Officer Henderson identified the people from the car, including Robe1i Lewis
Smith. RR5/124-125. Both Smith and the other male had warrants and were
taken into custody. RR5/125-126. Officer Henderson searched the vehicle with
special attention to the area where he had seen Smith throw an object. RR5/128-
129. Officer Henderson located the drugs marked as State's Exhibit 1 "on the
hump that separates the passenger and driver's seat on the driver's side of the
hump" where he saw Smith make furtive movements. RR5/129, lines 2-23. The
jury saw Officer Henderson's in car video. SE3. 14 F. Chemist Drew Font explained to the jury how the cocaine was tested and that it weighted over four grams.
Chemist Drew Fout was a reliable and believable witness based upon his
vast training and experience in the field of forensic chemistry and specifically
analysis and identification of controlled substances. He is the drug section
supervisor for the Texas Department of Public Safety Crime Lab in Austin.
RR5/105, lines 12-15. He has worked as an analyst for fifteen years and testified
numerous times on the area of forensic d1ug analysis. RR5/105-106. Mr. Fout
identified the drug as 5.63 grams of cocaine. SE1; RR5/107-109. His report was
also admitted and published to the jury. SE2; RR5/p.109, lines 4-22.
Any error in failure to include an accomplice witness instruction was
harmless as the reliable, believable evidence submitted to the jury tended to
connect Appellant to the offense. Furthennore, the convincing evidence
presented in this case show how persuasive the State's evidence was and
Appellant's conviction should be affirmed.
STATE'S RESPONSE TO POINT OF ERROR TWO
The evidence was legally sufficient to prove Appellant guilty of Manufacture I Delivery of Cocaine as alleged in the indictment.
The proper standard of review to determine legal sufficiency is whether the
evidence would support the verdict when viewed in the light most favorable to 15 the verdict. Johnson v. State, 23 W.W.3d 1, 7 (Tex. Crim. App. 2001). In other
words, if a reasonable trier of fact could have found beyond a reasonable doubt
the essential elements of the crime, the verdict will be deemed legally sufficient.
Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Hines v. State,
978 S.W.2d 169, 172 (Tex. App.-Texarkana, no pet.).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts. Jackson v. Virginia, 433 U.S. 307,319,99 S.Ct.
2781 (1979); Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004).
When perfonning a legal sufficiency review, the court may not sit as a thi1ieenth
juror, re-evaluating the weight and credibility of the evidence and substituting its
judgment for that of the factfinder. Dewbeny v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999), ce1i. denied, 529 U.S. 1131 (2000).
The comi 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). Specifically, the Court held that "once the trier of fact has
weighted the probative value ofunobjected-to hearsay evidence in its fact finding
process, an appellate comi cannot deny that evidence probative value or ignore it
in a review of the sufficiency of the evidence. Poindexter v. State, 153 S.W.3d
402, 406 (Tex. Crim. App. 2005) (citing Fernandez v. State, 805 S.W.2d 451,
16 453-56 (Tex. Crim. App. 1991) and Chambers v. State, 711 S.W.2d 240, 245-47
(Tex. Crim. App. 1986).
A. The State proved every required element for the offense of possession with intent to deliver beyond a reasonable doubt.
A person commits the offense if the person lmowingly manufactures,
delivers, or possesses with intent to deliver a controlled substance listed in
penalty group one. TEX. CON. SUB. ACT§ 481.112(a) (Ve1non 2015). Possession
means "actual care, custody, control or management." TEX. PEN. C. §
1.07(a)(39) (Ve1non 2015). Possession is voluntary if the possessor lmowingly
obtains or receives the thing possessed or is aware of his or her control of the
thing for a time sufficient to tenninate his or her control. TEX. PEN. C.§ 6.01(b)
(Ve1non 2015).
The indictment required proof of the following elements: 1) On or about
the 9th day ofNovember, 2010 in Hunt County, Texas; 2) Bobby Joe Evens aka
Bobby Joe Grant; and 3) lmowingly or intentionally possessed with intent to
manufacture or deliver a controlled substance, cocaine, in an amount of more
than four grams but less than two hundred grams. CR 6-7.
B. Appellant admitted his guilt to this crime as part of his prior testimony in a federal case.
In his federal testimony Appellant said he was a drug dealer who sold cocaine to
Smith in up to 7 gram amounts during the timeframe to include November 9,
17 2010 at various convenience stores in Greenville, Hunt County, Texas while
driving his t1uck. See supra Point of Error One section A. A reasonable
inference fi:om this testimony shows that Appellant admitted to every element of
this offense in his prior federal testimony. Id.
C. The jury heard undisputed evidence that this offense occurred on November 9, 2010 in Hunt County, Texas.
Investigator Warren Mitchell told the jury he anived at the scene of the
d1ug exchange and observed the Appellant on November 9, 2010 in Hunt
County, Texas. RRS/18-20. Inv. Jason Whitten also explained to the jury that
he observed Appellant meet up with Robert Smith on the same date at the NAT
24 gas station in Hunt County, Texas. RRS/114-120. Lt. Will Cole stopped
Appellant just a few blocks from the gas station on the day of the buy. RR
5/133-134. Officer Henderson encountered Smith at the gas station on
November 9, 2010 just after the buy occuned. RRS/122-123.
Smith told the jury he came to Greenville, Texas on November 9, 2010 to
score some d1ugs from Appellant. RRS/72-73.
D. The jury heard undisputed testimony that Appellant was the individual involved in this drug transaction and that he was arrested that day by Greenville police officers.
Inv. Mitchell identified Appellant as the person who delivered drugs to
Smith. RR5/p.35, lines 7-17. Robert Lewis Smith also identified Appellant for
the jmy and told them he had bought drug from the Appellant. RR5/p. 72, lines 18 6-24. Inv. Whitten was able to identify Appellant as the person he saw at the gas
station who met with Smith. RRS/114-115. Finally, Lt. Cole identified
Appellant as the person arr-ested right after the delivery just a few blocks fi·om
the crime scene. RR5 /13 3-13 4.
E. Evidence showed Appellant possessed over four grams but less than two hundred grams of cocaine with intent to deliver.
The testimony oflnv. Mitchell and Whitten detailed how Appellant pulled
into the convenience store and Smith got into his truck for a few minutes before
Appellant pulled out ofthe lot. RRS/37-39; 114-116; See supra Point ofError
One sections Band C. Smith was stopped by officers while still in the
convenience store parking lot. RRS/122-123. Appellant was followed from the
lot and stopped just a few blocks away from the store in possession of over
$1000.00. RRS/133-136; See supra Point ofEnor One section D.
Next, the in car video shows officers searching the car of Robert Smith Jr.
directly after the delivery occmred. SE 3. These videos also showed the
discovery of cocaine in the car near where Smith was shoving something as
officers initiated the stop. Id. See supra Point ofEnor One section E.
The cocaine was published to the jury. SE1; RRS/66-67. Chemist Drew
Fout testified to his testing and identification of the cocaine as well as its weight
of5.63 grams. SE1; RRS/108-109.
Fmihermore Smith testified he purchased States exhibit 1 from Appellant 19 just prior to the contact with officers and paid Appellant with ten 20 dollar bills.
RRS/7 4-77. Smith stated that he purchased approximately seven grams of
cocaine from Appellant, commonly called a "vick", and that he paid $200.00 (or
ten 20 dollar bills) for the drugs. RRS/75-76. Smith told the jury that the
cocaine seized from him that day was the same drugs he had just purchased fi·om
Appellant. RRS/77, lines 11-22. Smith also admitted that he tried to hide the
drugs by throwing it down near the console in the car. RRS/77-78.
Lt. Cole's photos show the $200.00 (or ten 20 dollar bills) when he
inventoried Appellant's possessions at the time of anest. SE23-26.
Once he was at the station, Smith confessed to buying cocaine fi·om
Appellant that day and told officers that he made regular purchases from
Appellant over a period of months. SE4. In fact, Smith told the jury he came to
Greenville that day to buy crack cocaine fi·om Appellant. RRS/72, lines 15-21;
and p.75, lines 13-17. He paid Appellant $200 dollars in the fonn often $20
bills for the 7 gram purchase. RRS/75-76. Smith knew that a 7 gram buy was
called a "Viele" RRS/76, lines 5-14. Appellant took Smith's money and gave
him the dtugs in a matter of minutes. RRS/76-77. Appellant drove off without
getting out ofhis tluck. Id. Smith said the officers found the drugs he bought
from Appellant that day after he tried to hide them when officers pulled up.
RRS/77-78. Smith said he threw the cocaine by the console to try to hide it. Id.
20 Smith sold the drugs he bought from Appellant in Emory, Texas. RR5/81,
lines 14-24. Smith testified about the numerous amounts of d1ugs he purchased
fi·om Appellant as well the different locations Appellant met him to conduct the
deliveries. RRS/72-73. Smith also told the jury that Appellant made deliveries
in the same t1uck he was driving in November, 2010. RRS/73-74. The jury not
only heard Smith's testimony, but they also observed his videotaped confession.
SE4.
The State disclosed Smith's criminal history to the jury. RRS/79-81.
Smith told them that he was cunently a federal prisoner with a d1ug conspiracy
conviction for the drugs he purchased from Appellant that day as well as the
other drugs purchased from Appellant over several months by Smith and sold in
Emory, Texas. Id.; RRS/90-96.
Inv. Mitchell explained the jury how a person could get a hundred and fifty
uses of cocaine fi·om the five plus pounds Appellant sold in this case. RR5/41-
42. He told the jury that the cocaine would likely be broken down into smaller
amounts and sold for pieces that cost as little as ten to five dollars. !d. He also
explained that the ten dollar rock of cocaine could be broken into three separate
uses. !d. In November of 2010 seven grams of cocaine sold for around two
hundred dollars in Greenville, Texas. RRS/42, lines 8-12. The common street
name for seven grams of cocaine was a "vick." RRS/42, lines 13-24. Inv.
21 Mitchell also explained to the jury how cocaine that was seven grams could
diminish to just around five and a half grams over time. RRS/42-43.
The evidence in this case is legally sufficient to prove Appellant guilty of
the offense as charged; therefore, his conviction should be affirmed.
22 CONCLUSION AND PRAYER FOR RELIEF
The State prays that the Comi will affirm Appellant's sentence.
Respectfully submitted,
Is/ Keli M. Aiken KELI M. AIKEN First Assistant District Attmney P. 0. Box 441 4th Floor, Hunt County Comihouse Greenville, TX 75403 kaiken@huntcounty .net State Bar No. 240434482 (903) 408-4180 FAX (903) 408-4296
23 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the undersigned attorney or record certifies that Appellants Brief contains 14-point typeface of the body ofthe brief and contains 3,858 words and was prepared on Microsoft Word 2013.
Is/ Keli M. Aiken KELI M. AIKEN First Assistant District Attmney P. 0. Box 441 4th Floor Hunt County Courthouse Greenville, TX 75403 (903) 408-4180 FAX (903) 408-4296 State Bar No. 24043442
CERTIFICATE OF SERVICE
A true copy of the State's brief has been placed in Elisha Hollis' box in the
Hunt County District Clerk's Office, today August 12, 2015, pursuant to local
rules.
Is/ Keli M. Aiken KELI M. AIKEN First Assistant District Attorney