ACCEPTED 02-15-00115-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 7/30/2015 5:44:30 PM DEBRA SPISAK CLERK
Oral argument not requested.
FILED IN 2nd COURT OF APPEALS No. 02-15-00115-CR FORT WORTH, TEXAS 7/30/2015 5:44:30 PM DEBRA SPISAK IN THE COURT OF APPEALS Clerk FOR THE SECOND DISTRICT OF TEXAS FORT WORTH
SHIRLEY JEAN JOHNSON Appellant, V.
THE STATE OF TEXAS, Appellee.
Brief for Appellant
Jeff Springer State Bar No. 18966750 SPRINGER & LYLE, LLP 1807 Westminster Denton, TX 76205 940.387.0404 (ph) 940.383.7656 (fax) jeff@springer-lyle.com
Attorney for Appellant
BRIEF FOR APPELLANT PAGE 1 OF 17 Identity of Parties and Counsel
Shirley Jean (Bell) Johnson 3302 E 2120 Road Appellant (Defendant below) Hugo, OK 74743
Mr. Paul Belew Tex. Bar No. 00794926 105 State Street Attorney for Johnson below P.O. Box 1026 Decatur, TX 76234
Mr. Jeff Springer, Esq. Texas Bar No. 18966750 1807 Westminster Attorney for Johnson on Denton, TX 76205 appeal 940.387.0404 (ph.) 940.383.7656 (fax)
The State of Texas Appellee (the State below)
Mr. Greg Lowery, Esq. Texas Bar No. 00787926 Wise Co. Dist. Attorney Mr. Jay Lapham, Esq. Attorney for the State Texas Bar No. 00784448 Wise Co. Ass’t Dist. Attorney County Courthouse, Suite 200 Decatur, Texas 76234
BRIEF FOR APPELLANT PAGE 2 OF 17 Table of Contents Identity of Parties and Counsel ....................................................................................................... 2 Table of Contents ............................................................................................................................ 3 Index of Authorities ........................................................................................................................ 4 Statement of the Case...................................................................................................................... 5 Statement Regarding Oral Argument.............................................................................................. 5 Issues Presented .............................................................................................................................. 5 Issue Number One: Was the evidence legally sufficient to prove the existence of an agreement, which is an essential element of the offense? .......................................................... 5 Statement of Facts ........................................................................................................................... 5 Summary of the Argument.............................................................................................................. 7 Argument and Authorities............................................................................................................... 7 Issue Number One (Restated): Was the evidence legally sufficient to prove the existence of an agreement, which is an essential element of the offense? .......................................................... 7 (A) Standard of Review .......................................................................................................... 8 (1) Elements of Conspiracy to Possess a Controlled Substance ........................................ 8 (2) Legal Sufficiency Standard of Review ......................................................................... 9 (B) The Evidence is Legally Insufficient ............................................................................... 9 (1) The text messages do not evidence an agreement. ..................................................... 10 (2) There was legally insufficient evidence of the substance and amount. ...................... 11 CONCLUSION ............................................................................................................................. 15 CERTIFICATE OF SERVICE ..................................................................................................... 16 CERTIFICATE OF COMPLIANCE ............................................................................................ 17
BRIEF FOR APPELLANT PAGE 3 OF 17 Index of Authorities
Cases Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ................................9 Brown v. State, 576 S.W.2d 36, 42 (Tex. Cr. App.1979) ........................................14 Dean v. State, 449 S.W.3d 267, 268 (Tex. App.–Tyler 2014, no pet.) .....................9 Graham v. State, 201 S.W.3d 323, 327 (Tex. App.—Hous. [14th Dist.] 2006, pet. ref’d) ................................................................................................................8 Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007) ..............................13 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)............................................................................................9 McCann v. State, 606 S.W.2d 897, 898 (Tex. Crim. App. 1980) ............................14 Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) ..........................8 Saldana v. State, 418 S.W.3d 722, 726 (Tex. App.–Amarillo 2013, no pet.). ..........9 Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983)........................................................................................15 Williams v. State, 646 S.W.2d 221, 222 (Tex. Crim. App.1983) ....................... 9, 14 Woods v. State, 801 S.W.2d 932, 943 (Tex. App.-- Austin 1990, pet. ref’d) ..........14
Statutes Tex. Health & Safety Code Ann. § 481.002(49) .......................................................8 Tex. Health & Safety Code Ann. § 481.115(a), (c). (West) ......................................8 Tex. Penal Code Ann. § 15.02 (West) .......................................................................9
BRIEF FOR APPELLANT PAGE 4 OF 17 Statement of the Case
Shirley Johnson was indicted for conspiracy to possess methamphetamine on
March 27, 2014. [CR 4]. On February 3, 2015, the trial court convened a jury trial
and she was found guilty. [1 RR 1; 2 RR 2 RR 148; CR 9, 14]. Johnson elected to
have the trial court assess punishment. [3 RR 1]. On March 19, 2015 the court
sentenced her to a two-year state jail term, suspended during five years of
community supervision. [3 RR 5; CR]. Johnson filed a notice of appeal on April
19, 2015. [CR 25].
Statement Regarding Oral Argument
Appellant’s issues for review have been fully briefed and summarized in this
filing. For that reason, oral argument is not requested.
Issues Presented
Issue Number One: Was the evidence legally sufficient to prove the existence of an agreement, which is an essential element of the offense?
Statement of Facts
Sergeant Chad Lanier arrested a drug trafficker named “Josh Weber” in
2012 and confiscated his cell phone. [2 RR 8-84]. In the weeks that followed, he
used the cell phone as a tool to investigate persons who called it. Id. at 86. On
December 4, 2012, Weber’s phone received a text message from (940) 393-6739
asking, “are you working?” Id. at 85-6. Sergeant Lanier testified that the phrase
was understood in the drug trade to mean “are you selling drugs?” Id. at 89.
BRIEF FOR APPELLANT PAGE 5 OF 17 Over the course of the next day and a half, Lanier exchanged several text
messages between Weber’s phone and the 6739 number, culminating in an order
for $100 worth of an unspecified substance. Id. Based on his understanding of
street customs and the way Josh Weber did business, he understood the order to be
for 1.25 grams of methamphetamine. [2 RR 90-91; 112-113].
Lanier arranged a roadside meeting with the person texting him from the
6739 number. When he arrived at the site of the meeting he found Shirley Johnson
waiting in an automobile. Id. at 96-97, 99. Lanier found a Samsung phone with the
6739 number in the car with her. Id. He took her phone but no drugs were
exchanged. Id. at 127.
Johnson was indicted almost two years later for conspiracy to possess a
controlled substance, a state jail felony. [CR 4]. She was convicted after a one-day
trial on February 3, 2015. [2 RR 1, 1-4]. The trial court sentenced her to two years
community supervision on March 19, 2015. [CR 21-23]. Johnson gave notice of
her intent to appeal on April 7, 2015. [CR 25].
BRIEF FOR APPELLANT PAGE 6 OF 17 Summary of the Argument
Lanier testified that Johnson made an agreement with him via a series of text
messages between Josh Weber’s phone Johnson’s Samsung phone. None of the
text messages admitted identify a substance. The text messages from Johnson’s
Samsung phone do not confirm a price or an amount to be purchased. Lanier
attempted to confirm the agreement by texting “u want 1.5g for $100.” Johnson,
however, did not respond. As a result there was direct evidence of an agreement.
Lanier tried to bridge the gap through his knowledge of Weber’s business
practices and his knowledge of “street talk.” However, no evidence was admitted
to prove that Johnson had any knowledge of Weber’s business practice or
understood street terms the same way Lanier did. Because insufficient facts were
offered to support the inferences, the jury could not infer that Johnson understood
the substance or the amount to be purchased. The evidence was therefore legally
insufficient to support her conviction.
Argument and Authorities
Issue Number One (Restated): Was the evidence legally sufficient to prove the existence of an agreement, which is an essential element of the offense?
Sergeant Lanier was the State’s only witness. He testified that in the early
morning hours of February 4, 2012, he received a text message that he later learned
came from the Samsung phone found in Johnson’s car. [2 RR 86]. Between that
BRIEF FOR APPELLANT PAGE 7 OF 17 time and the meeting with Johnson on February 5, he said several text messages
were exchanged, during which an agreement was made for him to sell 1.5 grams of
methamphetamine to Johnson for $100. [2 RR 90-91]. According to his testimony
the agreement was made through the exchange of text messages. Id.
(A) Standard of Review
(1) Elements of Conspiracy to Possess a Controlled Substance
Possession of more than one gram of methamphetamine “by aggregate
weight, including adulterants or dilutants,” is a felony. Tex. Health & Safety Code
Ann. § 481.115(a), (c). (West). “Possession” means (1) exercise of actual care,
custody, control, or management over the substance and (2) knowledge that the
substance is contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.
App. 2005). An adulterant or dilutant is “any material that increases the bulk or
quantity of a controlled substance, regardless of its effect on the chemical activity
of the controlled substance.” Tex. Health & Safety Code Ann. § 481.002(49);
Graham v. State, 201 S.W.3d 323, 327 (Tex. App.—Hous. [14th Dist.] 2006, pet. ref’d).
To convict Johnson of criminal conspiracy to possess more than one gram of
methamphetamine, the State was required to prove that she agreed with Lanier to
possess more than a gram of methamphetamine and that she performed an overt act
in pursuance of that agreement. Williams v. State, 646 S.W.2d 221, 222 (Tex.
Crim. App.1983); Tex. Penal Code Ann. § 15.02 (West).
BRIEF FOR APPELLANT PAGE 8 OF 17 (2) Legal Sufficiency Standard of Review
In assessing the sufficiency of the evidence, this Court reviews all the
evidence in the light most favorable to the verdict to determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010). “[O]nly that evidence which is sufficient in character, weight, and amount
to justify a factfinder in concluding that every element of the offense has been
proven beyond a reasonable doubt is adequate to support a conviction.” Brooks,
323 S.W.3d at 917 (Cochran, J., concurring).
When reviewing all of the evidence under the Jackson standard of review,
the ultimate question is whether the jury's finding of guilt was rational. Id. at 906–
07 n.26. If the Court determines the evidence insufficient to establish any element
of the offense, it must reverse and render a judgment of acquittal. Dean v. State,
449 S.W.3d 267, 268 (Tex. App.–Tyler 2014, no pet.) (citing Cuddy v. State, 107
S.W.3d 92, 95 (Tex. App.–Texarkana 2003, no pet.)); see Saldana v. State, 418
S.W.3d 722, 726 (Tex. App.–Amarillo 2013, no pet.).
(B) The Evidence is Legally Insufficient
To prove the existence of an agreement, the State offered the testimony of
Sergeant Lanier and photographs of some of the text messages he exchanged with
BRIEF FOR APPELLANT PAGE 9 OF 17 the Samsung phone. Lanier did not have Josh Weber’s cell phone when Johnson’s
jury trial convened in February of 2015, more than two years after the texts were
exchanged.1 As a result, no texts received on that phone were offered.
Not all of the messages on the Samsung phone had been saved. Lanier
testified that the outbox in the phone was full, and that some of the outgoing texts
were not there when he photographed the phone. [2 RR 112]. This left a handful of
messages, most of which Lanier sent from Josh Weber’s phone.
(1) The text messages do not evidence an agreement.
Thirteen messages from the Samsung were photographed. [4 RR Exhs. 2 &
3]. Three of those ask “are you working?” which Lanier said was common in the
drug trade for “are you selling drugs?” [2 RR 89]. The remaining messages involve
arranging the time and place for a meeting.
Not a single message admitted identifies the substance requested.
Among the messages admitted Lanier sent two from Weber’s phone in an
attempt to confirm specifics of the agreement.
One asked, “how much?” See [4 RR Exh. 2]. The other was reads, “Text me
when u get there u want 1.5g for 100.” See [4 RR Exh. 3]. There was no reply to
either message.
1 He testified that the phone was sent with Weber to Tarrant County, where he faced additional charges. [2 RR 102].
BRIEF FOR APPELLANT PAGE 10 OF 17 (2) There was legally insufficient evidence of the substance and amount.
In order to prove the elements of the offense, the prosecution was required to
prove not only that Johnson had agreed to purchase methamphetamine, but that she
also agreed to purchase more than a gram. Since none of the text messages from
the Samsung specified a particular substance or amount, the State attempted to
prove the agreement through inferences concerning Johnson’s intent.
Sergeant Lanier discussed his basis for believing that the text exchange
amounted to an agreement to purchase 1.5 grams of methamphetamine. First, he
explained that he knew Weber to traffic in methamphetamines. [2RR 83-84]. He
then he professed knowledge of Weber’s business practices:
Q. All right. All right. And how much was the request? A. 1.5 -- well, it was $100 worth of drugs, which in-- it's in -- in the drug world would be anywhere from 1.25 grams to 1.5 grams of methamphetamines. Q. All right. Were you familiar with the way Josh sold his drugs? A. Yes, sir, I was. Q. Okay. And how did he sell his drugs? If you -- if you were going to pay for $100 worth of methamphetamine, what were you going to get? A. 1.5 grams -- Q. All right. And -- A. -- counted in the bag. That's how much you'd get. Q. And so how much would -- would pertain -- or how much would allow for the -- for the bag? A. That particular bag would be .25 grams. Q. So the total weight, including the bag, would be 1.5 grams?
BRIEF FOR APPELLANT PAGE 11 OF 17 A. Yes. Q. And 1.25 grams of -- of product or methamphetamine? A. That is correct, sir. Q. And I -- I guess you are familiar with the fact that this -- methamphetamine a controlled substance? A. Yes, sir, it is.
[2 RR 90-91]. Later, he added that he could infer the substance and amount from
his understanding of “street terms:”
Q. Do you -- do you recall who the first person was that brought up the 1.5 grams? Would that have been you or would that have been her? A. Well, the -- the message was she wanted $100 worth. Q. All right. A. And in street terms, that's -- that's what it represents. Q. Now, with regards to grams, it doesn't say methamphetamine in -- in -- in your text message, correct? A. No, sir, it does not. Q. And at any point do you know -- did -- did she ask you specifically for methamphetamine? A. No. That's a word cops use. That's not a word the bad guys use. Q. All right. So fair to say it was an understood amount -- quantity -- excuse me -- an understanding with regards to the -- the type of drug? A. Yes, sir.
[2 RR 112-13]. This testimony was probably sufficient to prove that Lanier had an
understanding of an agreement. It constitutes no evidence that Johnson understood
the agreement.
BRIEF FOR APPELLANT PAGE 12 OF 17 Juries are permitted to draw multiple reasonable inferences, but each
inference must be supported by the evidence. Hooper v. State, 214 S.W.3d 9, 15-
16 (Tex. Crim. App. 2007). Juries are not permitted to come to conclusions based
on mere speculation. Id. They also cannot make inferences that are factually
unsupported or based on presumption. Id.
[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.
Id. There were no facts admitted during the trial that would allow the jury to
conclude that Shirley Johnson understood the communications between the
Samsung and Weber’s cell phone to constitute an agreement to purchase 1.5 grams
of methamphetamine.
In order for the jury to infer that Johnson was aware of the terms of the
agreement, the prosecution would have been required to fill the gap between
Lanier’s knowledge and Johnson’s. To do this, it needed to introduce facts proving
that, like Lanier, Johnson knew Josh Weber’s method of selling drugs, or that she
understood “street terms.” No evidence was offered to prove either. In fact, the
only evidence of Johnson’s experience with the drug trade was the fact that she had
never been convicted of anything. [2 RR 124, 130].
BRIEF FOR APPELLANT PAGE 13 OF 17 The State was not required to prove all elements of a completed offense.
McCann, 606 S.W.2d at 898; Brown v. State, 576 S.W.2d 36, 42 (Tex. Cr.
App.1979); Woods v. State, 801 S.W.2d 932, 943 (Tex. App.-- Austin 1990, pet.
ref’d). However, the State was required to prove an agreement to commit the exact
offense alleged:
Thus, one of the essential elements that must be proven is an agreement between the co-conspirators to commit the offense. The corpus delicti of conspiracy must contain a showing of agreement to commit a crime. Brown v. State, 576 S.W.2d 36 (Tex.Cr.App.1979) (on rehearing). Black's Law Dictionary defines agreement as follows: “A coming or knitting together of minds; ... the coming together in accord of two minds on a given proposition; ... a mutual assent to do a thing....” If an indictment alleges a conspiracy between only two individuals, but the evidence at trial shows that there was no actual, positive agreement to commit a crime, then the evidence is insufficient to support a conviction for conspiracy.
Williams v. State, 646 S.W.2d 221, 222 (Tex. Crim. App. 1983).
In this case, the evidence was sufficient for the jury to infer that Sergeant
Lanier intended to sell 1.5 grams of methamphetamine. The evidence fell short of
proving that Johnson understood that to be the agreement. For that reason, the
evidence was legally insufficient to support her conviction.
BRIEF FOR APPELLANT PAGE 14 OF 17 CONCLUSION
For the reasons explained above, Johnson requests the Court to determine
that her conviction is based on legally insufficient evidence, reverse and render
judgment of acquittal. Johnson also requests general relief.
Respectfully submitted,
/s/ J. Jeffrey Springer J. Jeffrey Springer Texas Bar No. 18966750 SPRINGER & LYLE, LLP 1807 Westminster Denton, Texas 76205 Tel: (940) 387-0404 jeff@springer-lyle.com
BRIEF FOR APPELLANT PAGE 15 OF 17 CERTIFICATE OF SERVICE
I certify that on July 30, 2015, I caused to be served the foregoing
instrument on the following counsel of record via the Court’s electronic case filing
system pursuant to Tex. R. App. P. 9.5:
Mr. Greg Preston Lowery, Esq. Wise County District Attorney 101 North Trinity, Suite 200 Decatur, Texas 76234
/s/ J. Jeffrey Springer J. Jeffrey Springer
BRIEF FOR APPELLANT PAGE 16 OF 17 CERTIFICATE OF COMPLIANCE
In compliance with Tex. R. App. P. 9.4(i), I certify that this document contains
3,678 words. This document was created in Microsoft Word. The body is in
conventional 14 point text, and the footnotes are in conventional 12 point text. I have
relied on the Microsoft Word software and word-count generated by the software in
making this certificate.
BRIEF FOR APPELLANT PAGE 17 OF 17