ACCEPTED 12-15-00002-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 5/8/2015 12:21:04 PM CATHY LUSK CLERK
12-15-00002-CR
RECEIVED IN 12th COURT OF APPEALS IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 5/8/2015 12:21:04 PM CATHY S. LUSK Clerk
Q’ANDREW SHELTON
Appellant, 5/8/2015 v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas Trial Cause No. 114-0724-14
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson JLawAppeals@gmail.com Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152 IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel: Austin Reeve Jackson 112 East Line, Suite 310 Tyler, TX 75702
Trial Counsel: Brent Ratekin 422 S. Spring Ave. Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West Assistant District Attorney, Smith County 4th Floor, Courthouse 100 North Broadway Tyler, TX 75702
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii TABLE OF CONTENTS............................................................................................... iii INDEX OF AUTHORITIES ......................................................................................... iv STATEMENT OF THE CASE....................................................................................... 2 ISSUES PRESENTED ................................................................................................... 2 STATEMENT OF FACTS ............................................................................................. 3 SUMMARY OF THE ARGUMENT ............................................................................. 4 ARGUMENT .................................................................................................................. 4
I. JURISDICTION ............................................................................................. 4
II. THERE WERE NO ERRORS IN VOIR DIRE ........................................... 5
III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE VERDICT .............................................................................................. 6
Posession .................................................................................................... 7
IV. PUNISHMENT ............................................................................................... 9
V. EFFECTIVE ASSITANCE OF COUNSEL............................................... 10
CONCLUSION AND PRAYER .................................................................................. 11 CERTIFICATE OF COUNSEL ................................................................................... 12 CERTIFICATE OF SERVICE ..................................................................................... 13 CERTIFICATE OF COMPLIANCE ............................................................................ 13
INDEX OF AUTHORITIES
iii TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT:
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) .................................... 4, 12
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .................................... 6, 9
Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) .................................. 10, 11
TEXAS COURT OF CRIMINAL APPEALS:
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) ........................................................ 6
Cannon v. State, 668 S.W.2d 401 (Tex.Crim.App. 1984) ........................................................ 11
Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000) .......................................................... 9
Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999) ............................................................ 9
Gamboa v. State, 296 S.W.3d 574 (Tex.Crim.App. 2009) ........................................................ 5
Ganious v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) ........................................................ 2
Gonzales v. State, 353 S.W.3d 826 (Tex.Crim.App. 2011) ........................................................ 5
Harris v. State, 656 S.W.2d 481 (Tex.Crim.App. 1983) ........................................................ 10
iv TEXAS COURT OF CRIMINAL APPEALS (CON’T):
Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 10
Johnson v. State, 614 S.W.2d 148 (Tex.Crim.App. 1981) ........................................................ 11
Jones v. State, 982 S.W.2d 386 (Tex.Crim.App. 1998) ........................................................ 5-6
Jordan v. State, 495 S.W.2d 949 (Tex.Crim.App. 1973) ........................................................ 10
King v. State, 29 S.W.3d 556 (Tex.Crim.App. 2002) .......................................................... 8
Miniel v. State, 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 10
Moore v. State, 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 10
Murray v. State, 302 S.W.2d 874 (Tex.Crim.App. 2009) ........................................................ 5
Rhodes v. State, 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 9-10
Rodriguez v. State, 899 S.W.2d 658 (Tex.Crim.App. 1995) ........................................................ 11
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 11
v TEXAS COURTS OF APPEAL:
Beltran v. State, 99 S.W.3d 807 (Tex.App.—Houston [14th Dist.] 2003) ............................... 6
Castaneda v. State, 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 10
Figueroa v. State, 250 S.W.3d 490 (Tex.App.—Austin 2008) ................................................... 8
Hurtado v. State, 881 S.W.2d 738 (Tex.App.-Houston [1st dist.] 1994) ................................... 8
Kirk v. State, 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 10
Mays v. State, 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ............................................ 4
STATUTES:
TEX. CODE CRIM. PROC. art. 4.05 ...................................................................... 5
TEX. PEN. CODE § 12.42 .................................................................................... 9
TEX. HEALTH & SAFETY CODE § 481.002 ......................................................... 7
TEX. HEALTH & SAFETY CODE § 481.115 ......................................................... 9
TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 4, 5, 7
TEX. R. APP. P. 33.1 .......................................................................................... 6, 9
vi 12-15-00002-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
Appellant,
v.
On Appeal from the 114th District Court of Smith County, Texas Trial Cause No. 114-0724-14
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Q’Andrew Shelton, and
files this brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would
show the Court as follows: STATEMENT OF THE CASE
Q’Andrew Shelton seeks to appeal his conviction and sentence for the of-
fense of Possession of a Controlled Substance in a Drug Free Zone rendered
against him in December of last year. (I CR 158). Mr. Shelton was indicted for
this offense in June of 2014 in the 114th District Court of Smith County, Texas. (I
CR 1). To this charge he entered a plea of “not guilty” and proceeded to trial by
jury. (I CR 158). Ultimately, the jury found him to be guilty. (Id.). The trial
court then imposed punishment at a term of fifty years’ confinement. (Id.). Sen-
tence was pronounced on 11 December 2014 and notice of appeal then timely
filed. (I CR 158, 168).
ISSUES PRESENTED
Counsel has reviewed the appellate record in this cause and reluctantly con-
cludes that as a matter of professional judgment the record contains no reversible
error and no jurisdictional defects are present. Where counsel concludes that there
are no arguable grounds for reversal, he is required to present a professional evalu-
ation of the record demonstrating why there are no arguable grounds to be ad-
vanced. Ganious v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).
STATEMENT OF FACTS
In April of last year officers with the Tyler Police Department were sent to a
neighborhood in response to a loud vehicle parked on the street. (XIII RR 33).
The first officer to arrive attempted to locate the owner of the vehicle and in doing
so came across Appellant, Mr. Q’Andrew Shelton. (XIII RR 40-41). Mr. Shelton
admitted to being the owner of the vehicle and the officer engaged him in a brief
conversation during which time he noticed that Mr. Shelton, who appeared to be
nervous and who smelled of marijuana, was “holding a red and white cigar-type
box.” (XIII RR 41). Mr. Shelton continued to exhibit signs of elevated nervous-
ness and was “giving on-verbal cues .. associate with someone that’s contemplat-
ing evading on foot….” (XIII RR 44). Given this circumstance, the officer asked
Mr. Shelton to sit on the front steps of one of the nearby homes. (XIII RR 50).
Once seated, Mr. Shelton “immediately began calling people on a cell
phone.” (XIII RR 53). Apparently, he was able to contact a woman inside the
home who came out on the front step and attempted to take the cigar box Mr. Shel-
ton had been holding. (XIII RR 56). The officer asked her to have a seat as well
and she complied. (XIII RR 56).
Based on what he had observed the officer conducted a pat-down of Mr.
Shelton and found a vile of PCP in his pocket. (XIII RR 58). This led to a search
of the cigar box he had been holding inside of which were found twelve additional
vials of PCP. (XIII RR 60).
As a result of this search Mr. Shelton was charged with the instant offense.
(I CR 1). To the charge he entered a plea of “not guilty,” was convicted, and sen-
tenced to serve a term of fifty years’ confinement. (I CR 158). Sentence was pro-
nounced on 11 December 2014 and notice of appeal then timely filed. (I CR 158,
168).
SUMMARY OF ARGUMENT
In accordance with the requirements of Anders v. California, 386 U.S. 738,
744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record
and determined that, in his professional opinion, the record contains no reversible
error or jurisdictional defects. Under circumstances where there appears to be no
arguable grounds for reversal on appeal, counsel is required to present a profes-
sional evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 290, 922-23, (Tex.App.—Fort Worth 1995, no pet.).
ARGUMENT
I. JURISDICTION
Under Texas law, possession of a controlled substance with the intent to de-
liver, as alleged here, is a felony offense. (I CR 1); TEX. HEALTH & SAFETY CODE
§ 481.134 (Vernon 2013). Therefore, jurisdiction properly rested with the 114th
District Court of Smith County, Texas. See TEX. CODE CRIM. PROC. ANN. Art.
4.05 (Vernon 2007) (stating that district courts shall have original jurisdiction in
felony criminal cases); Murray v. State, 302 S.W.2d 874, 877 (Tex.Crim.App.
2009). Additionally, because it alleged all of the essential elements of the charged
offense, the indictment returned in this case provided Mr. Shelton with sufficient
notice of the offense with which he was charged. (I CR 1); see also TEX. HEALTH
& SAFETY CODE § 481.134 (elements of the offense). Consequently, no error re-
garding the trial court’s jurisdiction can be advanced.
II. THERE WERE NO ERRORS IN VOIR DIRE.
Counsel has reviewed that portion of the record pertaining to voir dire for er-
rors and has found none. (XII RR gen.). Even if there was an error regarding jury
selection that had been preserved, a trial court’s decision to grant a challenge for
cause is subject to great deference by an appellate court and will be reversed “only
if a clear abuse of discretion is evident.” Gonzales v. State, 353 S.W.3d 826, 831
(Tex.Crim.App. 2011). On this record there does not appear a basis on which to
argue that a clear abuse of discretion could be shown based on potential jurors re-
sponses to questions from counsel, but, just as importantly, Mr. Shelton cannot
show that if there was an erroneous excusal of any of the potential jurors, that error
resulted in a jury being impaneled that was not lawfully constituted. Gamboa v.
State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009); Jones v. State, 982 S.W.2d
386, 394 (Tex.Crim.App. 1998). Consequently, the Court would have to overrule
any argument made as to this issue on appeal. Jones, 982 S.W.2d at 393. Finally,
the record does not present any objections to statements or actions by the State that
would warrant a reversal of Appellant’s conviction on appeal. See TEX. R. APP.
PROC. 33.1; Beltran v. State, 99 S.W.3d 807, 811-12 (Tex.App.—Houston [14th
Dist.] 2003, pet. ref’d).
III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE VERDICT.
The standard enunciated in Jackson v. Virginia1 is the one by which suffi-
ciency of the evidence challenges are measured. Brooks v. State, 323 S.W.3d 893,
895 (Tex.Crim.App. 2010). That is, in order to be legally sufficient the evidence at
trial must support a rational conclusion that each element of the charged offense
was proved beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186
(Tex.Crim.App. 1993). Under this standard the record is reviewed in the light
most favorable to the verdict. Id.
To prove the offense alleged the State was required to prove that on or be-
fore the date in the indictment:
1. In Smith County, Texas;
2. Q'Andrew Shelton;
3. Knowingly possessed;
1 443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979).
4. Phencyclidine (PCP);
5. In an amount between one and four grams.
(I CR 1); TEX. HEALTH & SAFETY CODE § 481.134.
There was no dispute that the actions giving rise to the instant allegation oc-
curred, if at all, within the time period alleged and within Smith County. Nor was
there any argument made as to the identity of the defendant. Additionally, the evi-
dence was undisputed that the substance seized in this case was PCP and had a to-
tal weight of more than one gram. Instead, Mr. Shelton primarily challenged
whether the State had proved the element of possession.
Possession
To establish possession the State was required to show that Mr. Shelton ex-
ercised care, custody, or control over the narcotics. TEX. HEALTH & SAFETY CODE
§ 481.002(38). Those factors can be evidence by the defendant’s presence when a
search is conducted; whether the contraband was in plain view; the defendant’s
proximity to and the accessibility of the contraband; whether the defendant was
under the influence of contraband when arrested; whether the defendant possessed
other contraband when arrested; whether the defendant made incriminating state-
ments when arrested; whether the defendant attempted to flee; whether the defend-
ant made furtive gestures; whether there was an odor contraband; whether other
contraband was present; where the defendant owned the place where the drugs
were found; whether the place where the drugs were found was enclosed; whether
the defendant was found with a large amount of cash; and whether the conduct of
the defendant indicated a consciousness of guilt. Figueroa v. State, 250 S.W.3d
490, 500 (Tex.App.—Austin 2008, pet. ref’d).
Here, a majority of these factors support a finding that Mr. Shelton pos-
sessed the PCP. See Id. (a court will look not to the number of the factors but their
strength). Mr. Shelton was present when the search was conducted, at least some
of the PCP was found on his person, Mr. Shelton had exhibited control and custody
over the box in which the majority of the PCP was found, he had made furtive ges-
tures while initially being detained and had an odor of marijuana on his person, and
had shown behavior which could indicate a consciousness of guilt. (XIII RR 41,
43, 44, 56, 57, 60, 61, 65, 100, 103, 240). As such, considering the logical force of
this evidence, it appears that if challenged the Court would find that the State suffi-
ciently established that Mr. Shelton possessed the requisite amount of PCP. See
Hurtado v. State, 881 S.W.2d 738, 745 (Tex.App.—Houston [1st Dist.] 1994, pet.
ref’d) (standard of review); see also King v. State, 29 S.W.3d 556, 562
(Tex.Crim.App. 2002) (on appeal court will not reweigh evidence).
Further, although some exculpatory evidence was developed (XIII RR 115,
261), on appeal the Court would also consider Mr. Shelton’s statements at the time
he was arrested that the woman who came out of the house was not involved and
that the drugs in the box “were not hers.” (XIII RR 100, 103). Such statements,
indicating a consciousness of guilt, would go a long way to undermining the ex-
culpatory evidence Mr. Shelton did present and, even if the Court was inclined to
give more weight to the exculpatory evidence than the jury did, it cannot substitute
on appeal its judgment for that of the original finder of fact. Dewberry v. State, 4
S.W.3d 735, 740 (Tex.Crim.App. 1999); see also Curry v. State, 30 S.W.3d 394,
406 (Tex.Crim.App. 2000) (any inconsistencies that may be present are resolved in
favor of the verdict).
Thus, taking the record before the Court as a whole and viewing the evi-
dence in the light most favorable to the jury’s verdict, it cannot be said on appeal
that the evidence was legally insufficient to support the judgment rendered at trial.
See Jackson, 443 U.S. at 319 (standard of review).
IV. PUNISHMENT.
As alleged, the offense of possession of a controlled substance is a third de-
gree felony. TEX. HEALTH & SAFETY CODE § 481.115(c). However, because the
State also established that Mr. Shelton had previously been convicted of two felony
offenses, the punishment range was enhanced to a maximum of confinement for
life. TEX. PEN. CODE § 12.42(d). Consequently, although the issue of cruel or ex-
cessive punishment was not raised at the time sentence was imposed and, there-
fore, has been waived on appeal, see TEX. R. APP. P. 33.1(a)(1); Rhoades v. State,
934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719,
723 (Tex.App.—Dallas 2003, no pet.), because the fifty year sentence imposed
was within the statutory punishment range for the offense it is presumptively not
constitutionally cruel and unusual under these circumstances. Kirk v. State, 949
S.W.2d 769, 772 (Tex.App.—Dallas 1997, pet. ref’d); see also Harris v. State, 656
S.W.2d 481, 486 (Tex.Crim.App. 1983); Jordan v. State, 495 S.W.2d 949, 952
(Tex.Crim.App. 1973). The record presents no basis from which to argue that this
presumption can be overcome on direct appeal.
V. EFFECTIVE ASSISTANCE OF COUNSEL.
Effective assistance of counsel is to be evaluated under the standard enunci-
ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344
(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To
prevail on a claim of ineffective assistance of counsel, a defendant must show (1)
that his trial counsel’s performance fell below an objective standard of reasonable-
ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged
errors, the result would have been different. Strickland, 466 U.S. at 687-88. On
appeal, the defendant carries the burden of proving ineffective assistance by a pre-
ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.
1985). Trial counsel’s performance is not to be judged with the benefit of hind-
sight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).
With the Strickland standard in mind, counsel has reviewed the record be-
fore the court and found no conduct that would rise to the level of rendering trial
counsel’s assistance ineffective. See, e.g., Johnson v. State, 614 S.W.2d 148, 152
(Tex.Crim.App. [Panel Op.] 1981) (holding that, on appeal, courts will not second-
guess reasonable trial decisions). Although Mr. Shelton indicated he was not en-
tirely happy with his trial counsel (XVII RR 20), there were no actions or inactions
on the part of trial counsel appearing in the record available for direct appeal that
would support a claim that ineffective assistance was rendered and also, but for
that ineffective assistance, the result at trial would have been different. See Can-
non v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984) (burden is on defendant
to establish ineffective assistance); Rodriguez v. State, 899 S.W.2d 658, 665
(Tex.Crim.App. 1995) (a review of counsel’s actions looks to the record as a whole
and not merely at isolated incidents).
CONCLUSION AND PRAYER
As counsel was unable to raise any arguable issues for appeal, he is required
to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503
(Tex.Crim.App. 1991).
WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,
after affording Mr. Shelton the opportunity to review the record and file a pro se
brief should he desire to do so, accept this brief and grant the attached Motion to
Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct.
1396 (1967).
Respectfully submitted,
/s/ Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152
CERTIFICATE OF COUNSEL
The attorney’s role as an advocate requires that I support my client’s appeal
to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve
Jackson, counsel of record in this appeal, do hereby state that I have diligently
searched the entire record in this cause. I have researched the law applicable to the
facts and issues contained therein, and it is my professional opinion that the record
reflects no reversible error. In conformity with the applicable law pertaining to an
appeal of this nature, I have set forth any potential grounds of error and have
briefed them to the extent possible. I have further caused a copy of this brief to be
served by certified mail on the Appellant, accompanied by a letter informing the
Appellant of the right to examine the record for the purpose of filing a pro se brief.
/s/ Austin Reeve Jackson
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Brief was delivered to counsel
for the State by efile concurrently with its filing and a copy of the same delivered
to Appellant by certified, first-class mail.
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 2,642 words.