Lashonda Deon Jones v. State

Opinion

ACCEPTED 14-15-00300-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 9/28/2015 10:44:49 AM CHRISTOPHER PRINE CLERK

Case Number: 14-15-00300-CR Case Number: 14-15-00301-CR FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 9/28/2015 10:44:49 AM IN THE COURT OF APPEALS FOR THE CHRISTOPHER A. PRINE Clerk

14th DISTRICT OF TEXAS

AT HOUSTON

LASHONDA DEON JONES Appellant, V. THE STATE OF TEXAS Appellee

Appealed from the 221st Judicial District Court Montgomery County, Texas Cause 15-01-00219-CR ct. 1 and 2

LASHONDA DEON JONES'S APPELLANT'S BRIEF IDENTITIES OF PARTIES AND COUNSEL

JUDGE: Honorable Lisa Michalk Montgomery County Courthouse 301 North Main Street Conroe, Texas 77301 Phone: 936-538-8133

PROSECUTORS: Mrs. Monica A. Cooper Assistant District Attorney SBOT No. 24071344 -and- Mrs. Sheri B. Culberson Assistant District Attorney SBOT No. 24012288 Montgomery County District Attorney's Office 207 West Phillips, Second Floor Conroe, Texas 77301 Phone: 936-539-7800

DEFENSE COUNSEL: Mr. Joseph W. Krippel SBOT No. 24007515 2442o FM 1314, Suite 9 Porter, Texas 77365 Phone: 936-232-0073

APPELLANT: Mr. LASHONDA DEON JONES #1999529 Plane State Jail 904 FM 686 Dayton, Texas 77535 APPELLANT'S ATTORNEY: Mr. Austin D. Black Law Office of Austin D. Black SBOT No. 24050018 215 Simonton Street Conroe, Texas 77301 Phone: 936-242-7601

2 APPELLEE'S ATTORNEY: Mr. Brett Ligon District Attorney Montgomery County District Attorney's Office SBOT No. 00795966 207 West Phillips Conroe, Texas 77301 Phone: 936-539-7800 INDEX OF AUTHORITIES Cases

Anders v. California, 386 U.S. 738 (1967) 5, 6, 10 McCoy v. Court of Appeals, 486 U.S. 429 (1988) 7 Penson v. Ohio, 488 U.S. 75 (1988) 10 Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966); Tea v. State, 453 S. W. 2d 179, 181 (Tex. Crim. App. 1970) 9 Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) 6, 10 High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978) 5, 6 Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) 9 Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). ... ... ... ... ... ... ... ... ... 7 Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). .............................. 7 Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 112 L. Ed. 2d 333, 111 S. Ct. 371 (1990) 8 Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.-Waco 1994, pet. Ref d) (quoting McCoy, 486 U.S. at 436.). 7 Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). 7 Wilson v. State, 955 S.W.2d 693, 695 n. 2 (Tex. App.-Waco 1997, no pet.) (quoting High, 573 S.W.2d at 813). 6

Statutes and Treatises Texas Rules of Evidence §901 8 DIX & DAWSON §38.148 10

4 ISSUES PRESENTED

After a careful review of the record, Counsel for Appellant has identified no

appellate issues that would persuade a court of appeals.

STATEMENT OF THE CASE

Appellant was charged by indictment for one count of the felony offense of

Possession of a Controlled Substance, alleged to have been committed on or about May

14, 2014 pursuant to Texas Penal Code §481.115. 1 In the second count Appellant was

charged by indictment for Tampering with Physical Evidence, alleged to have been

committed on or about May 14, 2014 pursuant to Texas Penal Code §37.09. 2

On January 28, 2015, a jury found the Appellant guilty of both offenses. 3

On January 29, 2015, the judge sentenced the Appellant to forty-five (45) years

confinement in the Texas Department of Criminal Justice, Institutional Division in each

case to run concurrently.`

Written Notice of Appeal was timely entered of record, and the Appellant files his

brief on the merits. 5

STATEMENT OF FACTS

In May of 2014 a couple of women kept renting out rooms and then a few days

later asking to switch rooms at the Econo Lodge in Conroe, Texas. 6 The owner contacted

a Narcotics Officer that he had regular contact with when reporting issues he notices at

'Clerk's Rec. Vol. I, at 43. 2 Clerk's Rec. Vol. I, at 43. 3 Clerk's Rec. Vol. 1. at 123-25. 4 Clerk's Rec. Vol. I. at 122. 5 Clerk's Rec. Vol. I. at 128. 6 Reporter's Rec. Vol. IV, at 35.

5 his hotel.' Officer Foxworth was informed of an inordinate amount of foot traffic

occurring in the rooms and he ran the names of the individuals that had rented the room

and discovered they had narcotics history. 8 Officer Foxworth then ran his narcotics dog

on Room 136 that was rented to Lashonda Jones and the dog alerted to the presence of

narcotics at that location. 9 Officer Foxworth then requested and received a warrant from

a Montgomery County Judge and took it to the location to execute it. 10 Officer Foxworth

uses the key card he received from the owner to open the door to the room and Appellant

was on the other side of the door trying to force it back closed." At this same time

Officer Foxworth sees Appellant stuffing something into her shirt. 12 After everyone in

the room was subdued a female officer was called to search Appellant, at which time a

Scope bottle containing PCP was discovered in the bra area of Appellant. 13

SUMMARY OF THE ARGUMENT

Counsel for Appellant has reviewed the appellate record and has found that there

are no arguable grounds for advancing an appea1. 14 There is no reversible error upon

which an appeal can be predicated 15 . Under controlling authority, there are no errors in

the trial court's judgment. 16

Reporter's Rec. Vol. IV, at 34. 8 Reporter's Rec. Vol. IV, at 36. 9 Reporter's Rec. Vol. IV, at 46. 10 Reporter's Rec. Vol. IV, at 48-51. I I Reporter's Rec. Vol. IV, at 56-57. 12 Reporter's Rec. Vol. IV, at 59. 13 Reporter's Rec. Vol. IV, at 74. 14 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n. 3. 15 Anders, 386 U.S. at 744-45. 16 High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

6 Possible grounds for appeal in this case are limited to a possible abuse of

discretion in admitting evidence as well as error in allowing the State, over Appellants

objection, to take her fingerprints in open court during the punishment phase in order to

establish the admissibility of pen packets showing prior convictions. The only theories

that Appellant's attorney can discover after a conscientious review of the record and the

law are arguments that cannot conceivably persuade the appellate court. Further, counsel

can identify no potentially arguable issues.

ARGUMENT

When appointed counsel files an Anders brief, a Court of Appeals is to conduct an

independent review of the record to determine whether there are any arguable grounds for

appeal." If an Anders brief raises potentially arguable issues, the reviewing court's "duty

is to determine whether there are any arguable grounds and if there are, to remand to the

trial court so that new counsel may be appointed to brief the issues." I8 A Court of

Appeals is not required to review the merits of each claim raised in an Anders brief.

Any issue that is "arguable on [the] merits" is, by definition, not frivolous. 19 The

United States Supreme Court has defined a "wholly frivolous" appeal as one that "lacks

any basis in law or fact." 2° "An appeal is 'frivolous' when 'the trial court's ruling[s

were] correct' or 'the appellant was not harmed by the ruling[s].'" 21 Once counsel has

determined that an appeal is frivolous, counsel must file a brief identifying anything in

17 See Stafford, 813 S.W.2d at 511. 18 Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005). 19 See Anders, 386 U.S. at 744. 20 McCoy v. Court of Appeals, 486 U.S. 429, 438 n. 10 (1988). 21 Wilson v. State, 955 S.W.2d 693, 695 n. 2 (Tex. App.—Waco 1997, no pet.) (quoting High, 573 S.W.2d at 813).

7 the record that might arguably support the appeal and discussing either why the trial

court's rulings were correct or why the appellant was not harmed by the rulings. 22 "If the

only theories that the attorney can discover after [a] conscientious review of the record

and the law are 'arguments that cannot conceivably persuade the court,' then the appeal

should be considered frivolous." 23

I. A Claim That the Chain of Custody of the Narcotics Was Not Established

Would Not Succeed on Direct Appeal

A. Standard of Review

A trial court's decision to admit or exclude evidence is reviewed for abuse of

discretion. 24 "[Ms long as the trial court's ruling was at least within the zone of

reasonable disagreement, the appellate court will not intercede." 25 Trial courts are

afforded wide latitude in their decisions to admit or exclude evidence. 26

B. Under Court of Criminal Appeals Precedent, the Court Did Not Err in

Admitting the Narcotics

Appellant's attorney objected to the introduction of exhibit 90 and 90A, which

were a 12 by 15 yellow envelope along with the scope bottle containing the narcotics. 27

The exhibits were admitted during the testimony of Laurie Raesz, a Forensic Chemist at

the Texas Department of Public Safety in Houston. 28 Appellant's Counsel argued that the

22 Id. 23 Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.—Waco 1994, pet. Ref d) (quoting McCoy, 486 U.S. at 436). 24 See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). 25 Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). 26 Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). 27 Reporter's Rec. Vol. V, at 142. 28 Reporter's Rec. Vol. V, at 143.

8 exhibits were inadmissible because the State did not prove the first step in the chain of

custody by bringing whoever secured the evidence and initialed it securing it within the

chain of custody. 29

Texas Rule of Evidence 901(a) provides that the requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its proponent claims."30 It is well

settled that minor theoretical breaches in the chain of custody go to the weight rather than

the admissibility of the evidence. 31 Proof of the beginning and end of the chain will

support admission of the evidence barring any showing of tampering or alteration. 32

Officer Melchor admitted that she did not mark the narcotics or place them in an 33 Those facts would not render the exhibits inadmissible absent a showing evidence bag.

by appellant or tampering or alteration. 34 Officer Melchor testified that she was able to

identify the Scope bottle and its contents as those recovered from Appellant on the day in

question. 35 Thus, the Court acted correctly in admitting the evidence over the objection

of counsel.

29 Reporter's Rec. Vol. V, at 129. 30 See Tex R. Evid. 901(a). 31 DeLeon V. State, 505 S.W.2d 288, 289 (Tex. Crim. App. 1974). 32 Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 112 L. Ed. 2d 333, 111 S. Ct. 371 (1990). 33 Reporter's Rec. Vol. V, at 117. 34 See Stoker, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 112 L. Ed. 2d 333, 111 S. Ct. 371 (1990). 35 Reporter's Rec. Vol. V, at 115.

9 II. There Was No Error in the Trial Court Ordering the Appellant to Provide

Fingerprints in Open Court

The Court instructed the State to have their investigator fingerprint the Appellant

in open court in order to have comparisons for penitentiary packets. 36 Appellant's

attorney objected due to lack of notice being given by the State. 37 The Court on its own

motion ordered that the investigator proceed with the fingerprinting and overruled the

objection of counsel. 38

To establish that a defendant has been convicted of a prior offense, the State must

provide beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction. 39 The State may prove both of these elements in

several ways, including (1) the defendant's admission or stipulation, (2) testimony by a

person who was present when the person was convicted of the specified crime and can

identify the defendant as that person, or (3) documentary proof (such as a judgment) that

contains sufficient information to establish both the existence of a prior conviction and

the defendant's identity as the person convicted. 40

The taking of fingerprints for identification purposes is not a violation of the

accused's rights under the Fifth Amendment. 41 "[T]he most common method of proving

36 Reporter's Rec. Vol. VI, at 64. 37 Reporter's Rec. Vol. V, at 64. 38 Reporter's Rec. Vol. VI, at 65. 39 Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). 49 Id. at 921-22.

41 Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966); Tea v. State, 453 S. W. 2d 179, 181 (Tex. Crim. App. 1970).

10 identity is by fingerprint comparison. This method usually entails taking the fingerprints

of the defendant during the trial." 42

CONCLUSION AND PRAYER

Appellant prays that this Court conduct a "full examination of all the proceedings

to decide whether the case is wholly frivolous." 43 Should the Court find that the case is

wholly frivolous, Appellant's counsel prays that he be allowed to withdraw as counse1. 44

Respectfully Submitted,

Law Office of Austin D. Black 215 Simonton Street Conroe, Texas 77301 (936) 524-3124 Telephone (936) 756-3539 Facsimile Email: adb@yourconroeattorney.com

Austin D. Black State Bar No. 24050018 Attorney for Appellant LASHONDA DEON JONES

42 DIX & DAWSON, §38.148. 43 Penson v. Ohio, 488 U.S. 75, 80 (1988), Bledsoe, 178 S.W.3d at 827-28. 44 Anders, 386 U.S. at 744.

11 CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing Appellant's Brief was delivered vis e-file to the Montgomery County District Attorney's Office, at 207 W. Phillips, Conroe, Texas 77301, on the September 28, 2015.

0,e---73-6,71 Austin D. Black