ACCEPTED 03-14-00260-CR 3599727 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/29/2014 11:07:16 AM JEFFREY D. KYLE CLERK
No. 03-14-00260-CR FILED IN 3rd COURT OF APPEALS In the AUSTIN, TEXAS Court of Appeals 12/29/2014 11:07:16 AM Of the Third Supreme Judicial District JEFFREY D. KYLE Clerk Austin, Texas
FRANK RICCI FLORES, Appellant
v.
The State of Texas, Appellee
Appeal from the 391st Judicial District Court Tom Green County, Texas Cause Number A-12-0701-SA
STATE’S BRIEF
Allison Palmer District Attorney 51st Judicial District
Leland Lacy Assistant District Attorney 124 W. Beauregard, Suite B San Angelo, Texas 76903 (325) 659-6583 (325) 658-6831 FAX Leland.lacy@co.tom-green.tx.us State Bar No. 24057953
Oral argument is not requested Table of Contents
Index of Authorities............................................................................. ii
Statement of the Case....................................................................... iii
Statement of Facts ............................................................................ 2
State's Counterpoint One .................................................................. 3
Summary of the State's Argument ..................................................... 4
Argument and Authorities .................................................................. 4
Prayer ............................................................................................... 6
Certificate of Compliance .................................................................. 7
Certificate of Service ......................................................................... 7
i Index of Authorities
Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................... 4
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ..................... 5
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................ 5
ii Statement of the Case
Frank Ricci Flores was indicted on September 12, 2013, for
Possession of a Controlled Substance, to-wit heroin less than a gram,
enhanced to a Second Degree Felony by two prior convictions. (C.R.
p. 7). Flores was found guilty of the indicted charge by a jury on
February 25, 2014. (R.R. Vol. 5 p. 60). Flores elected to have the
jury assess punishment. (C.R. p. 37). Flores pled “not true” to the
enhancements. (R.R. Vol. 6 p. 13). The jury found the enhancements
to be true and assessed punishment at 12 years confinement in
Texas Department of Criminal Justice Institutional Division and a fine
of $5,000.00. (R.R. Vol. 6 pp. 74-75). The Court sentenced the
Defendant to that punishment. (R.R. Vol. 6. p. 77). Flores timely filed
a Motion for New Trial and Motion in Arrest of Judgment stating that
the verdict was contrary to the law and the evidence. (C.R. p. 65).
This Motion contained a certification that a copy of the Motion was
hand-delivered to the Trial Court. (C.R. p. 66). The Trial Court
certified that Flores had the right to appeal. (C.R. p. 43).
iii No. 03-14-00260-CR
In the Court of Appeals Of the Third Supreme Judicial District Austin, Texas
Appeal from the 391st Judicial District Court Tom Green County, Texas Cause Number A-12-0701-SA
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
that of the appellant.
1 Statement of Facts
Flores was stopped for a traffic violation on May 18, 2012, by
Officer Ryan Morgan of the San Angelo Police Department in the City
of San Angelo, Tom Green County, Texas. (R.R. Vol. 4 p. 18). After
Flores stopped his vehicle, he opened the door of the vehicle and
exited the vehicle. (R.R. Vol.4 p. 19 lines 13-15). The officer saw two
pill bottles in the driver’s door. (R.R. Vol. 4 p. 20 lines 21-25). One of
the bottles was empty and one contained a small piece of heroin.
(R.R. Vol. 4; p. 20 lines 3-6). Flores was taken to the Tom Green
County jail and was searched prior to being taken into the jail. (R.R.
Vol. 4 pp. 23 line 23 - p. 24 line 1). At this time the Flores was
searched and another small amount of heroin was found in the
baseball cap that was removed from the Flores’ head. (R.R. Vol. 4 p.
24 lines 3-11). Marissa Silva, a chemist with the Texas Department
of Public Safety testified that the substance was heroin. (R.R. Vol. 4
p. 54 lines 18-25). Silva also testified that the combined weight of the
two separate packages of heroin was .18 grams and would be about
the size of two eraser parts of the end of a pencil. (R.R. Vol. 4 p. 58
lines 4-7).
2 Carlota Menchacha testified that she and the Flores were living
together at the time the Defendant was arrested. (R.R. Vol. 5 p. 10
lines 13 - p. 11 line 6). Menchacha further testified that she was in
control of the automobile earlier in the day on the day the Flores was
arrested. (R.R. Vol. 5 p. 11 lines 8-9). Menchacha testified that the
insurance on the vehicle was in her name. (R.R. Vol. 5 p.13 lines 1-9)
She testified that she had used the vehicle earlier in the day and had
purchased heroin and had left the herion in the car (R.R. Vol. 5 p. 15
line 5 - p. 16 line 20). Specifically Menchacha testified that she left
one “paper” of heroin in a pill bottle and one “paper” in a cap. (R.R.
Vol. 5 p. 18 lines 18-21). Ms. Menchacha testified that Flores was
not aware that the drugs were in the car. (R.R. Vol. 5 p. 18 line 25; p.
19 line 9).
State’s Counterpoint One
The verdict is supported by legally sufficient evidence.
3 Summary of the Argument
Officer Morgan testified that he found heroin inside a pill bottle
in a car under the Appellant’s sole care, custody and control. Officer
Morgan testified that he found heroin within Appellant’s hat during a
search at the jail. A chemist with the Midland crime lab testified that
the substance was heroin.
Argument and Authorities
In Texas, evidence to support a verdict is legally sufficient if
viewed in a light most favorable to the verdict, the evidence, and all
reasonable inferences there from would allow a rational trier of fact to
find the essential elements of the crime beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 895, 916 (Tex. Crim. App. 2010).
Officer Morgan testified at trial that the alleged heroin was found
in a pill bottle that was found within the door panel in appellant’s car.
(R.R. Vol. 4 pp. 20). Officer Morgan testified that when he searched
Appellant at the jail another paper of heroin was found in the
Appellant’s hat. (R.R. Vol. 4 p. 24).
4 When conducting review on appeal, an appellate court is required
to defer to the jury's role as the sole judge of witness credibility, and the
weight their testimony is to be afforded. Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999). To find legal sufficiency, "[e]ach fact
need not point directly and independently to the guilt of the defendant,
as long as the cumulative force of the incriminating circumstances is
sufficient to support the conviction." Hooper v.
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ACCEPTED 03-14-00260-CR 3599727 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/29/2014 11:07:16 AM JEFFREY D. KYLE CLERK
No. 03-14-00260-CR FILED IN 3rd COURT OF APPEALS In the AUSTIN, TEXAS Court of Appeals 12/29/2014 11:07:16 AM Of the Third Supreme Judicial District JEFFREY D. KYLE Clerk Austin, Texas
FRANK RICCI FLORES, Appellant
v.
The State of Texas, Appellee
Appeal from the 391st Judicial District Court Tom Green County, Texas Cause Number A-12-0701-SA
STATE’S BRIEF
Allison Palmer District Attorney 51st Judicial District
Leland Lacy Assistant District Attorney 124 W. Beauregard, Suite B San Angelo, Texas 76903 (325) 659-6583 (325) 658-6831 FAX Leland.lacy@co.tom-green.tx.us State Bar No. 24057953
Oral argument is not requested Table of Contents
Index of Authorities............................................................................. ii
Statement of the Case....................................................................... iii
Statement of Facts ............................................................................ 2
State's Counterpoint One .................................................................. 3
Summary of the State's Argument ..................................................... 4
Argument and Authorities .................................................................. 4
Prayer ............................................................................................... 6
Certificate of Compliance .................................................................. 7
Certificate of Service ......................................................................... 7
i Index of Authorities
Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................... 4
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ..................... 5
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................ 5
ii Statement of the Case
Frank Ricci Flores was indicted on September 12, 2013, for
Possession of a Controlled Substance, to-wit heroin less than a gram,
enhanced to a Second Degree Felony by two prior convictions. (C.R.
p. 7). Flores was found guilty of the indicted charge by a jury on
February 25, 2014. (R.R. Vol. 5 p. 60). Flores elected to have the
jury assess punishment. (C.R. p. 37). Flores pled “not true” to the
enhancements. (R.R. Vol. 6 p. 13). The jury found the enhancements
to be true and assessed punishment at 12 years confinement in
Texas Department of Criminal Justice Institutional Division and a fine
of $5,000.00. (R.R. Vol. 6 pp. 74-75). The Court sentenced the
Defendant to that punishment. (R.R. Vol. 6. p. 77). Flores timely filed
a Motion for New Trial and Motion in Arrest of Judgment stating that
the verdict was contrary to the law and the evidence. (C.R. p. 65).
This Motion contained a certification that a copy of the Motion was
hand-delivered to the Trial Court. (C.R. p. 66). The Trial Court
certified that Flores had the right to appeal. (C.R. p. 43).
iii No. 03-14-00260-CR
In the Court of Appeals Of the Third Supreme Judicial District Austin, Texas
Appeal from the 391st Judicial District Court Tom Green County, Texas Cause Number A-12-0701-SA
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
that of the appellant.
1 Statement of Facts
Flores was stopped for a traffic violation on May 18, 2012, by
Officer Ryan Morgan of the San Angelo Police Department in the City
of San Angelo, Tom Green County, Texas. (R.R. Vol. 4 p. 18). After
Flores stopped his vehicle, he opened the door of the vehicle and
exited the vehicle. (R.R. Vol.4 p. 19 lines 13-15). The officer saw two
pill bottles in the driver’s door. (R.R. Vol. 4 p. 20 lines 21-25). One of
the bottles was empty and one contained a small piece of heroin.
(R.R. Vol. 4; p. 20 lines 3-6). Flores was taken to the Tom Green
County jail and was searched prior to being taken into the jail. (R.R.
Vol. 4 pp. 23 line 23 - p. 24 line 1). At this time the Flores was
searched and another small amount of heroin was found in the
baseball cap that was removed from the Flores’ head. (R.R. Vol. 4 p.
24 lines 3-11). Marissa Silva, a chemist with the Texas Department
of Public Safety testified that the substance was heroin. (R.R. Vol. 4
p. 54 lines 18-25). Silva also testified that the combined weight of the
two separate packages of heroin was .18 grams and would be about
the size of two eraser parts of the end of a pencil. (R.R. Vol. 4 p. 58
lines 4-7).
2 Carlota Menchacha testified that she and the Flores were living
together at the time the Defendant was arrested. (R.R. Vol. 5 p. 10
lines 13 - p. 11 line 6). Menchacha further testified that she was in
control of the automobile earlier in the day on the day the Flores was
arrested. (R.R. Vol. 5 p. 11 lines 8-9). Menchacha testified that the
insurance on the vehicle was in her name. (R.R. Vol. 5 p.13 lines 1-9)
She testified that she had used the vehicle earlier in the day and had
purchased heroin and had left the herion in the car (R.R. Vol. 5 p. 15
line 5 - p. 16 line 20). Specifically Menchacha testified that she left
one “paper” of heroin in a pill bottle and one “paper” in a cap. (R.R.
Vol. 5 p. 18 lines 18-21). Ms. Menchacha testified that Flores was
not aware that the drugs were in the car. (R.R. Vol. 5 p. 18 line 25; p.
19 line 9).
State’s Counterpoint One
The verdict is supported by legally sufficient evidence.
3 Summary of the Argument
Officer Morgan testified that he found heroin inside a pill bottle
in a car under the Appellant’s sole care, custody and control. Officer
Morgan testified that he found heroin within Appellant’s hat during a
search at the jail. A chemist with the Midland crime lab testified that
the substance was heroin.
Argument and Authorities
In Texas, evidence to support a verdict is legally sufficient if
viewed in a light most favorable to the verdict, the evidence, and all
reasonable inferences there from would allow a rational trier of fact to
find the essential elements of the crime beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 895, 916 (Tex. Crim. App. 2010).
Officer Morgan testified at trial that the alleged heroin was found
in a pill bottle that was found within the door panel in appellant’s car.
(R.R. Vol. 4 pp. 20). Officer Morgan testified that when he searched
Appellant at the jail another paper of heroin was found in the
Appellant’s hat. (R.R. Vol. 4 p. 24).
4 When conducting review on appeal, an appellate court is required
to defer to the jury's role as the sole judge of witness credibility, and the
weight their testimony is to be afforded. Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999). To find legal sufficiency, "[e]ach fact
need not point directly and independently to the guilt of the defendant,
as long as the cumulative force of the incriminating circumstances is
sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). Menchacha testified that she had purchased
the heroin found in the defendant’s hat and the heroin that was found in
the pill bottle she had purchased previously. (R.R. Vol. 5 pp. 15-18).
Menchaca also testified that she could not remember the name of the
person she bought the heroin from or the location of where the heroin
was purchased (R.R. Vol. 5 pp. 30-31). Menchacha testified to being
a daily heroin user for three years prior to Appellant’s arrest for this
offense. (R.R. Vol. 5 pp. 30-33). The jury determined that
Menchacha’s testimony was not credible and did not overcome the
other evidence of the appellant’s guilt that was presented at trial. The
evidence that the Appellant was in exclusive control of the car and the
5 hat where the officer located the heroin would allow a rational trier of
fact to find that Appellant possessed the heroin.
Prayer
The State asks this Court to overrule the appellant’s points of
error and to affirm the trial court’s judgment.
Respectfully submitted,
Allison Palmer District Attorney
_____________________ Leland Lacy Assistant District Attorney State Bar No. 24057953
6 Certificate of Compliance Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby
certify, based upon the computer program used to generate this brief,
that this brief contains 667 words, excluding words contained in those
parts of the brief that Rule 9.4(i) exempts from inclusion in the word
count. I further certify that this brief is printed in a conventional, 14-
point typeface.
_____________________ Leland Lacy
Certificate of Service I hereby certify that, on the 22nd day of December, 2014, a true
and correct copy of this motion was served, by U.S. mail, electronic
mail, facsimile, or electronically through the electronic filing manager,
to the appellant’s attorney, Thomas W. Watson, Attorney at Law,
2441 S. 1st St, Abilene, TX 79605, tom@mehaffeyandwatson.com.