Hartsfield, Richard Earl

• Court: Court of Appeals of Texas
• Decided: March 3, 2015
• Docket: PD-1679-14
• Status: Published

Opinion

/«7?-/V ORIGINAL No. PD-1679-14

UUUKI Ul- UKIMflNHL HI-TtftLb IN THE

MAR 02 2015 COURT OF CRIMINAL APPEALS

OF TEXAS Abel Acosta, Clerk

FILED IN RICHARD EARL HARTSFIELD, Appellant COURT OF CRIMINAL APPEALS

VS. MAR 03 2015

THE STATE OF TEXAS, Abel Acosta, Clerk Appellee

Petition in Cause #241-1150-13 from the 241st District Court of Smith County/ Texas and the Court of Appeals for the Twelfth District of Texas, No. 12-13-000343-CR

PETITION FOR DISCRETIONARY REVIEW

RICHARD EARL HARTSFIELD #1906378 MICHAEL Unit 2664 F.M. 2054 Tennessee Colony, TX 75886 Pro Se

[APPELLANT REQUESTS NO ORAL ARGUMENT] TABLE OF CONTENTS

PAGE

Names of all Parties i

Table of Contents ii

Index of. Authorities iii

Statement Regarding No Oral Argument 1

Statement of the Case 1

Statement of Procedural History , 1

Ground for Review 1

Argument 1

Prayer for Relief 5

Certificate of Service 5

APPENDIX

Court of Appeals1 Memorandum Opinion 6

EXHIBIT #1: "Motion to Dismiss Theft of Firearm" charge in CAUSE #241-1153-13 7

EXHIBIT #2: "Motion to Dismiss Possession of Prohibited Weapon" charge in CAUSE #241-1152-13 8

EXHIBIT #3: "Motion to Dismiss Unlawful Possession of Firearm by Felon" charge in CAUSE #241-1151-13

-ii- STATEMENT REGARDING NO ORAL ARGUMENT

No oral argument is requested because, as will be shown

below, the trial record clearly establishes that the evidence

was/is insufficient to an affirmative finding of a deadly

weapon.

STATEMENT OF THE CASE

On October 28th, 2013, Richard Harts'field ("Appellant") was

convicted in the 241st District Court of Smith County, Texas

and sentenced to LIFE confinement in the Texas Department of

Criminal Justice in Cause #241-1150-13, for the offense of

Manufacture/Delivery of Controlled Substance In a Drug Free Zone

Notice of Appeal was timely filed (I CR 129, 134).

STATEMENT OF PROCEDURAL HISTORY

On December 03rd, 2014, the Twelfth Court of Appeals affirmed

the trial court's judgment of a deadly weapon finding. The

Texas Court of Criminal Appeals granted an extension of time to

file this Petition for Discretionary Review.

GROUND FOR REVIEW

DID THE 12th COURT OF APPEALS REASONABLY APPLY CLEARLY ESTABLISHED FEDERAL LAW, UNDER JACKSON v. VIRGINIA, 99 S.Ct. 2781 (1979), WHEN IT AFFIRMED THE JURY'S AFFIRMATIVE FINDING OF A DEADLY WEAPON IN LIGHT OF THE FACTS IN THIS CASE?

ARGUMENT

Appellant is incarcerated in violation of the Due Process

Clause of the FOURTEENTH AMENDMENT of the United States

Constitution after the Twelfth Court of Appeals [unreasonably

applied clearly established federal law, under JACKSON v.

-1- VIRGINIA, because no rational trier of fact [c]ould have found

the essential elements of an affirmative finding of a deadly

weapon beyond a reasonable doubt in light of the following facts

established or [lacking] at trial:

1) Appellant and another individual were [in the front yard]

of a home that Tyler police searched pursuant to a search

warrant on April 11th, 2013 (V RR 140-142);

2) When the police searched [inside] the said home, which

belonged to Appellant's [s]ister (VI RR 190-192), they

found multiple firearms (V RR 159-168) yet the officer[s]

conceded that they had no evidence that Appellant "ever

touched or used" the weapons "in any way" and that their

month[s]-long surveillance of him had offered nothing to

support any inference that he had ever carried a firearm

(V RR 239-240, 244-265);

3) When Appellant was detained while officers searched inside

the home (V RR 143), Appellant had no weapon on him (V RR

240, 268);

4) The home was used by [multiple] family members of the

Appellant's and their friends, many of whom had access and

entry to the home without permission and assistance from

Appellant (VI RR 180-198);

5) Several of the firearms recovered were actually owned by

other members of the family without any involvement from

Appellant (VI RR 190-192);

6) No evidence suggested the Appellant ever knew any weapons

were inside the home;

-2- 7) A police officer testified that when Appellant (having

$585.oo on him, which the officer termed "a lot of money")

was arrested outside in the front yard of the home that

police recovered the firearms, Appellant was a good

distance from the nearest firearm which was found under

a couch [inside] the home (V RR 268);

8) None of the firearms recovered were out in plain view but,

rather, were in places out of sight many of which were

difficult to reach and wrapped in blankets or gun bags and

stored in a hot water heater closet in such a way that they *1 were "extremely difficult to get to" (V RR 284);

9) The officer who discovered the large amount of firearms in

the hot water heater closet testified that "those guns were

not being used to protect anything. They were just in the

hot water heater closet" (V RR 283, 284);

ID) Although Appellant went to trial for possession of or

distribution of cocaine, no evidence at trial established

he ever possessed or distributed any narcotics; and,

11) State's Exhibit #12,0 showed that the drugs recovered by

police were in different rooms than those of the firearms

(XI RR).

Appellant also contends that the trial court's judgment as to

the deadly weapon finding should be reversed because after Appel-

*1 The police officer testified that "to go in this hot water heater closet, the door opens into it, so you had to open the door, squeeze in and then try to get the door closed behind you to actually get in the room" (V RR 284).

-3- lant's conviction on October 28th, 2013, the State successfully

moved on October 31st, 2013 to dismiss it's three indictments *2 against Appellant, which were: (1) Theft of Firearm, (2) Posses- Tig sion of Prohibited Weapon, and (3) Unlawful Possession of Firearm *A by Felon.

The Court of Appeals affirming the trial court's deadly weapon

finding also was an [unreasonable application of federal law

under JACKSON v. VIRGINIA because Appellant's case is identical *5 to the prisoner's case in WYNN v. STATE in which this Court

upheld the Houston Court of Appeals' holding that there was "no

support for a deadly weapon finding where, in part, the Defendant

was in the patrol car when officers searched the house and was

not within reach of the narcotics and gun, the guns were found in

a different bedroom than the narcotics, and the Defendant was one

of several people with access to the house." The Tyler Court of

Appeals's reasoning for affirming the trial court's deadly weapon

finding in this case was: l)the large amount and type of firearms

discovered, 2) their close, albeit not immediate, proximity to the

contraband discovered, and 3) the aforementioned testimonies of

the officers" (see APPENDIX, p. 6, Court of Appeals' Memorandum

*2 seeattryihed EXHIBIT.#1:1 "Motion:to Dismiss Theft of Firearm" charge in Cause #241-1153-13, which was GRANTED.

*3 . ^tiTyhad EXHIBIT #2: "Motion to Dismiss Possession of Prohibited Weapon" charge in Cause #241-1152-13, also GRANTED. *4 gee aft-arted EXHIBIT #3: "Motion to Dismiss Unlawful Possession of Fire arm by Felon" charge in Cause #241-1151-13, also GRANTED. *5 847 S.W.2d 357, 360 (Tex. App. Houston [1st Dist.] 1993), aff'd, 864 S.W.2d 439 (Tex. Crim. App. 1993).

-4- Opinion) .

However, in light of the (11) aforementioned facts with Appel

lant's supporting arguments in this petition, "the evidence is"

very "[in]sufficient to support the essential elements of a"

deadly weapon finding "beyond a reasonable doubt". JACKSON v.

VIRGINIA, 99 S.Ct. 2781, 2786-87 (1979).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant humbly prays that

this Court GRANT this petition, remand this case back to the

Court of Appeals with instructions to reverse the judgment of

the trial court as to the deadly weapon finding and reform the

judgment to reflect the same.

Respectfully submitted,

RICHARD EARL HARTSFIELI^ #1906378 MICHAEL Unit 2664 F.M. 2054 Tennessee Colony, TX 75886 Pro Se

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Petition for

Discretionary Review was served to the State's Attorney by placing

same in the MICHAEL Unit mailbox, postage pre-paid, on February

,2<£ i 2015, and addressed to: Michael West, Asst. District Attorney of Smith County, Texas 4th Floor, Courthouse 100 North Broadway Tyler, TX 75702

RICHARD EARL HARTSFIELD^

-5- NO. 12-13-00343-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD EARL HARTSFIELD, § APPEAL FROM THE 241ST APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Richard Earl Hartsfield appeals his conviction for possession of between four and two hundred grams of cocaine in a drug free zone with intent to deliver, for which he was sentenced to imprisonment for life. In one issue, Appellant argues that the evidence is insufficient to support the jury's affirmative deadly weapon finding. We affirm.

Background

On April 11, 2013, Tyler Police Department officers executed a search warrant at a house where Appellant resided. Appellant was in the front yard when the officers arrived and was detained while they conducted their search of the premises. As a result of the search, the officers recovered cocaine and marijuana as well as numerous firearms. Appellant was placed under arrest.

Appellant was charged by indictment with possession of between four and two hundred grams of cocaine in a drug free zone with intent to deliver. The indictment further alleged that Appellant had been previously convicted of murder. The State later successfully moved to amend the indictment to add the allegation that Appellant "used or exhibited a deadly weapon, to wit: a firearm, for the purpose of protecting his narcotics and profits while conducting illegal narcotics sales." Appellant pleaded "not guilty," and the matter proceeded to a jury trial, following which the jury found Appellant "guilty" as charged. The jury further found that Appellant used or exhibited a deadly weapon during his commission of the offense. Ultimately, the jury assessed Appellant's punishment at imprisonment for life. The trial court sentenced Appellant accordingly, and this appeal followed.

Evidentiary Sufficiency of Deadly Weapon Finding

In his sole issue, Appellant argues that the evidence is insufficient to support the jury's affirmative deadly weapon finding. Standard of Review

The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, pet. refd). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41^2, 102 S.Ct. 2211, 2217-18, 72 L.Ed. 2d 652 (1982). The sufficiency of the evidence is measured against the offense as defined by a hypothetically correctjury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." Id.

1443 U.S. 307, 315-16, 99 S. Ct. 2781,2786-87, 61 L. Ed. 2d 560 (1979). Governing Law

The Texas Penal Code defines a "deadly weapon" as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal CODE Ann. § 1.07(a)(17)(B) (West Supp. 2012). A firearm is per se a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2014). The Texas Court of Criminal Appeals has stated that "use" of a deadly weapon during the commission of the offense means that the deadly weapon "was employed or utilized in order to achieve its purpose." Rollerson v. State, 196 S.W.3d 803, 808 (Tex. App.-Texarkana 2006), affd, 227 S.W.3d 718 (Tex. Crim. App. 2007). On the other hand, to "exhibit" a deadly weapon means that the weapon was "consciously shown or displayed during the commission of the offense."' Id. (citing Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). But even simple possession of a firearm may be sufficient to support a deadly weapon finding if the possession facilitates the associated felony. See Rollerson, 196 S.W.3d at 941. In Patterson, the appellant was convicted of possession of a controlled substance. See Patterson, 769 S.W.2d at 939. A team executing a search warrant at a private residence found the appellant sitting on a couch in the living room. See id. A loaded .45 caliber revolver was found by the arresting officer concealed between the appellant's leg and the end of the sofa. See id.; see also Rollerson 196 S.W.3d at 808-09. The officer also found the appellant's wallet and a pistol "boot" holding ammunition for a .45 caliber weapon on a table next to the couch. See Patterson, 769 S.W.2d at 939; see also Rollerson 196 S.W.3d at 809. The court approved the intermediate court's determination that a rational trier of fact could find that the appellant "used" the firearm during the commission of the felony offense of possessing the contraband, in the sense that the firearm protected and facilitated the appellant's care, custody, and management of the contraband. See Patterson, 769 S.W.2d at 942. Therefore, the court held that there was

sufficient evidence to uphold the jury's finding that he used or exhibited a deadly weapon in the course of possessing the contraband. See id. The court of criminal appeals recently discussed its holding in Patterson in Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013). Specifically, the court noted the expansion of its holding in Patterson as follows:

A second expansion of Patterson permits deadly weapon findings when a jury could infer, in the absence of actual harm or threat, that the weapon "facilitated" the associated felony. For example, when a defendant possesses both guns and drugs, a jury may make a deadly weapon finding even though he did not overtly use or brandish a gun because the weapon reasonably could have "protected and facilitated [the] appellant's care, custody, and management of the contraband."

A third expansion of Patterson's reach permits a deadly weapon finding even when the weapon is not found on or near the defendant. In Coleman v. State, [145 S.W.3d 659 (Tex. Crim. App. 2004)], the defendant was handcuffed in a patrol car while police officers searched his house and found a large quantity of drugs in a safe, along with two guns and a large amount of cash. [Id at 650]. These facts generated a "cumulative effect sufficient to show that the weapons had facilitated the possession of drugs by protecting them and the profits from their sale." [Id at 655]. The nature of the illegal drug trade invites the possibility of violence and encourages drug dealers to carry deadly weapons to protect themselves and their inventory. The "drug fortress theory" supposes that firearms stored at a drug manufacturing or distribution location might be used to defend against police or thieves. A second theory, the "more than strategic proximity theory," requires an evidentiary connection between the guns and drugs to establish that the guns "facilitated or could have facilitated the drug trafficking offense." Both theories recognize that drug dealers frequently use guns to protect themselves and their merchandise.

Plummer, 410 S.W.3d at 859 [citations omitted]. The court noted that since its holding in Patterson, it had upheld deadly weapon findings when the evidence showed that the weapon facilitated the associated felony even though it was not overtly used. See id. at 860. Firearms and Contraband Recovered from the Residence

In the case at hand, when conducting their search of the living room area adjacent to the entryway, officers discovered a .40 caliber Smith & Wesson semiautomatic pistol with a loaded magazine underneath a sectional couch. Detective Hillary Erbaugh testified that this pistol was easily accessible to Appellant, even when he was standing outside the house. Erbaugh further testified that Appellant could reach the pistol, aim, and fire it in about fifteen seconds. Officers also discovered marijuana on a nearby shelf. In the kitchen that adjoined the living room, officers found razor blades in a drawer above a cabinet, in which they discovered a loaded Glock 23 pistol and a .22 caliber Baretta pistol concealed in a plastic grocery bag. Erbaugh and Detective Jamie Tarrant testified that, in their respective experiences with the narcotics world, razor blades were used for cutting up narcotics such as crack cocaine into smaller amounts.

Behind a bar in a secondary living area adjacentto the primary living area, officers found twenty-four grams of marijuana. In the bedroom2 near the kitchen, officers discovered on top of a dresser a plastic baggie containing thirteen grams of cocaine and a digital scale. Sergeant Brian Bulman testified that

2Officers determined that this bedroom was used by Appellant. digital scales are often used to weigh narcotics for resale and distribution. Moreover, Erbaugh testified that the cocaine in the baggie had been part of a "cookie" of crack cocaine and that the amount was consistent with an amount offered for sale rather than one kept for personal use\ Finally, in the water heater closet between the kitchen and Appellant's bedroom, officers found a loaded 9mm Beretta pistol, an unloaded TEC-9 handgun, an unloaded AK-47 rifle, and a loaded .22 caliber rifle. In the same closet, they found several loaded magazines for the TEC-9 and a large amount of ammunition of various calibers including ammunition for the Glock 23 /J pistol and the Smith & Wesson pistol. /" Erbaugh, Tarrant, and Bulman each testified that drug dealers commonly possess firearms to protect their product and the proceeds from its sale. Bulman further testified that drug dealers often possess firearms as a means of intimidation in dealing with their clients. Each of these officers also testified that firearms used by drug dealers in this way facilitated their delivery of controlled substances. Moreover, the officers stated that in theiropinions and based on their respective training and experiences, Appellant used a firearm to facilitate the offense of possession of cocaine with intent to deliver. The record indicates that none of the firearms located within the home were found in the precise location as the recovered contraband. Nonetheless, based on ourreview of the record, we conclude that the plethora of firearms discovered in the residence far exceed the realm of mere coincidence. See Coleman, 145 S.W.3d at 659 n.14 (automatic weapons or large-bore pistols are more likely connected to a drug transaction than a hunting rifle or shotgun) (citing United States v. Moses, 289 F.3d 847, 851 (6th Cir. 2002) (stating that possession of a .22 pistol is not "an uncommon weapon among those who commit drug offenses")); United States v. Drozdowski, 313 F.3d 819, 823 (3d Cir. 2002) (noting that handguns "are more likelyto be used in connection with a drug offense than long, hunting guns"); United States v. Cantero, 995 F.2d 1407, 1411 (7th Cir. 1993) (noting that the handgun "is a 'tool of the [drug] trade' because it is easy to conceal yet deadly"); United States v. Green, 889 F.2d 187, 189 (8th Cir. 1989) ("[u]nlike the rifle in the hypothetical, however, guns like Green's are used only for personal protection")); see also, e.g., Gale v. State, 998 S.W.2d 221, 222-23 (Tex. Crim. App. 1999) (guns found in closet with drugs included "one Ruger-Mini-14 rifle ... an Uzi semi-automatic assault-type rifle, one nine-millimeter rifle, one nine millimeter handgun"). Considering the (1) the large number and type of firearms discovered, (2) their close, albeit not immediate, proximity to the contraband discovered, and (3) the aforementioned testimonies of the officers, we conclude that these facts generate a cumulative effect sufficient to show that the weapons facilitated the possession of drugs by protecting them and the profits from their sale. See Plummer, 410 S.W.3d at 859; Coleman v. State, 145 S.W.3d 655. Therefore, we hold that the evidence is sufficient to supportthe jury's deadly weapon finding. Appellant's sole issue is overruled.

Disposition

Havingoverruled Appellant's sole issue, we affirm the trial court's judgment.

James T. Worthen Chief Justice

Opinion delivered December 3, 2014. Panel consisted of Worthen, C.J., Griffith, J., andHoyle, J.

(DO NOT PUBLISH) *"\ CAUSE NO. 241-1153-13 -IW "V '.'* I'--*

THE STATE OF TEXAS § IN TJHE 241ST JUDIC, ! I ••'- ' VS. § DISTRICT CO . SMITH CO.. TX RICHARD HARTSFIELD § SMI OEPUTY

Theft of Firearm MOTION TO DISMISS

Now comes theCriminal District Attorney ofSmith County, Texas and asks the Court to dismiss the above entitled and numbered Cause, for the following reason, to-wit:

On October28,2013, the defendant was convicted and sentenced to LIFE confinement in the Texas Department of Criminal Justice in cause number 241-1150-13, for the offense of Manufacture/Delivery of Controlled Substance Ina Drug Free Zone.

THEREFORE, THE STATE RESPECTFULLY REQUESTS THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE.

ASSISTANT DI9?RICTj^fTORNEY FIRSTASSISTANT DISTRICT ATTORNEY OR SMITH COUNTYyTEXAS SMITH COUNTY, TEXAS

ORDER OF DISMISSAL On this daycame to be considered the Motion to Dismiss ofthe State's Attorney filed herein, and the Court is satisfied that the reasons so stated are good and sufficient to authonze such dismissal. It is therefore, CONSIDERED, ORDERED, AND ADJUDGED that this criminal action be and is the same dismissed without prejudice.

SIGNED THIS $* DAY OF Oc±nfov& ,2oi3. CAUSE NO. 241-1152-13 IL

THE STATE OF TEXAS § IN THE f 41ST JUU^IALj

VS. § DISTRICT COBRT- CI.F.RK ?^1s-1 J, HCO..TX RICHARD HARTSFIELD § SMITH CO*JNT DEPUTY Possession of Prohibited Weapon

MOTION TO DISMISS

Now comes the Criminal District Attorney of Smith County, Texas and asks the Court to dismiss the above entitled and numbered Cause, for the following reason, to-wit:

OnOctober 28,2013,thedefendant wasconvicted andsentenced to LIFE confinement intheTexas Department of Criminal Justice in cause number 241-1150-13, for the offense of Manufacture/Delivery of Controlled Substance In a Drug Free Zone.

THEREFORE, THE STATE RESPECTFULLY REQUESTS THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE.

AssistanTdistrict^ttorney FIRST ASSISTANT DISTRICT ATTORNEY or smith count¥ftexas SMITH COUNTY, TEXAS

ORDER OF DISMISSAL On this day came to be considered the Motion to Dismiss ofthe State's Attorney filed herein, and the Court is satisfied that the reasons so stated are good and sufficient to authorize such dismissal. Itistherefore, CONSIDERED, ORDERED, AND ADJUDGED that this criminal action be and is the same dismissed without prejudice.

SIGNED THIS a\^AYOFOCfrrJbli^ ,2013. CAUSE NO. 241-1151-13

THE STATE OF TEXAS § IN THE 2 UST

VS. § DISTRICT COUR; CIJFfiK ?<11 IFH. SMITH CO.. TX 0EPUTY RICHARD HARTSFIELD § SMITH C Unlawful Possession of Firearm by Felon MOTION TO DISMISS

Now comes the Criminal District Attorneyof SmithCounty, Texas andasks theCourt to dismiss the above entitled and numbered Cause, for the following reason, to-wit:

On October 28,2013, the defendant was convicted and sentenced to LIFE confinement in the Texas Department of Criminal Justice in cause number 241-1150-13, for the offense of Manufacture/Delivery of Controlled Substance Ina Drug Free Zone.

THEREFORE, THE STATE RESPECTFULLY REQUESTS THAT THIS CASE BE DISMISSED WITH^fTT PREJUDICE.

•ASSISTANT DIS1TRICTA2TORNEY FIRSTASSISTANT DISTRICT ATTORNEY OR SMITH COUNTY^TEXAS SMITH COUNTY, TEXAS

ORDER OF DISMISSAL On this day came to be considered the Motion to Dismiss ofthe State's Attorney filed herein, and the Court is satisfied that the reasons so stated are good and sufficient to authorize such dismissal. It is therefore, CONSIDERED, ORDERED, AND ADJUDGED that this criminal action be and is the same dismissed without prejudice.

SIGNED THIS "3P""dAY OF OC^fob^O ,2013.