State of Louisiana Versus Tommy Horton

Louisiana Court of Appeal·Decided December 4, 2024·No. 24-KA-52·Unknown

Opinion

STATE OF LOUISIANA NO. 24-KA-52 VERSUS FIFTH CIRCUIT TOMMY HORTON COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 23-4506, DIVISION "E"

HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

December 04, 2024

STEPHEN J. WINDHORST

JUDGE

Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Timothy S. Marcel

CONVICTION AND SENTENCE AFFIRMED; FINANCIAL OBLIGATION VACATED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED SJW SMC TSM

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr.

Thomas J. Butler Juliet L. Clark

COUNSEL FOR DEFENDANT/APPELLANT, TOMMY HORTON Prentice L. White

WINDHORST, J.

On appeal, defendant’s appointed appellate counsel filed an Anders1 brief on defendant’s behalf asserting that there is no basis for a non-frivolous appeal. For the reasons that follow, we affirm defendant’s conviction and sentence, vacate defendant’s financial obligation, and remand with instructions. We further grant appellate counsel’s motion to withdraw as attorney of record. PROCEDURAL HISTORY On September 22, 2023, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Tommy Horton, with possession of a controlled dangerous substance, to wit: cocaine weighing less than two grams in violation of La. R.S. 40:967 C. Defendant was arraigned and pled not guilty. On January 18, 2024, a six-person jury unanimously found defendant guilty of possession of cocaine.2 The trial court sentenced defendant to two years imprisonment in the Department of Corrections, suspended the sentence, and placed defendant on active probation for two years. This appeal followed. TRIAL EVIDENCE Officer Trevia Wilfred, with the Jefferson Parish Sheriff’s Office (“JPSO”), testified that she works in the “Property and Laundry Department” (“property department”) at the Jefferson Parish Correctional Center (“JPCC”), where she inventories inmates’ property following their arrests. She explained that after an individual is arrested, his property is initially searched by a deputy in the intake department, after which the property is placed in a plastic bag, sealed, and then

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 In the bill of information, the State charged defendant with possession of cocaine weighing less than two grams. A review of the record shows that the jury instructions provided to the jury did not include an instruction as to an amount or weight of cocaine possessed by defendant. The jury was instructed that it could find defendant guilty of possession of cocaine, attempted possession of cocaine, or not guilty. The jury found defendant guilty of possession of cocaine. Nevertheless, at trial, infra, the jury was presented with evidence as to the amount of cocaine, which was stipulated to by the State and defense counsel, and defendant was sentenced under La. R.S. 40:967 C(1) (when the cocaine has an aggregate weight of less than two grams). Therefore, this does not present a non-frivolous issue on appeal.

brought to the property department where it is locked in the property room. She stated there are five employees, including herself, that work in the property department. As part of her duties, she is tasked with inventorying the items in the sealed property bags, creating a property card, and then placing the inventory back in the bags.3 Officer Wilfred testified that on August 29, 2023, at 10:04 A.M.,4 she searched the sealed bag containing defendant’s property which was searched and placed in a bag in the intake department following his arrest. She testified that she found a small plastic bag containing a white powdery substance inside his wallet, which she thought might be cocaine.5 She then took the substance to the sergeant in the intake department, in this case, Sergeant David Murray.

Chase Bagley testified that he is a patrol deputy with the JPSO in the Second District. He stated that as part of his duties as a deputy, he works overtime at the JPCC, assisting the correctional officers. Deputy Bagley testified that on August 29, 2023, while working at the JPCC, Deputy Amanda Israel alerted him to the discovery of contraband in the intake department.6 He learned that Officer Wilfred found a white powdery substance inside the wallet of an arrested subject, which he suspected was cocaine. He recalled contacting “the District” and requesting “Crime Scene.” 7

3 She stated that after the property is locked in the property room, “the next day, once we get the roll-in sheet, we see what name is on the rolling sheets and then what property we have to pull.” She explained that the property bags are brought over to them on a cart, and each employee in her department “pull a property” and she “pulled” defendant’s property. 4 The police report states that Officer Wilfred conducted her inventory of the contents of defendant’s property bag, located a “clear baggie with a white power like substance inside,” and brought the baggie to Sergeant Murray at approximately 10:40 A.M, informing him of where she found the substance. 5 At trial, Officer Wilfred was shown the white substance and identified it as the white powdery substance that she found in defendant’s wallet. 6 Deputy Bagley testified that at that time, he was assisting Deputy Israel with the investigation because he does “a lot of narcotics work on the street, so [he] was just helping her with it because they don’t handle that as often.” 7 At trial, Deputy Bagley recognized the substance that tested positive for cocaine on that day and Deputy Israel’s police report regarding the incident he investigated.

Deputy Bagley testified he subsequently met with defendant, he read defendant his Miranda8 rights, defendant acknowledged that he understood his rights, and defendant agreed to speak to him. Deputy Bagley told defendant that a substance was found in his wallet and asked defendant what the substance was, to which defendant immediately replied that it was cocaine. Defendant further acknowledged that he was aware that the cocaine was in his wallet. Defendant informed Deputy Bagley that he got the cocaine from “a ho in a club” he was in. The footage from Deputy Bagley’s body camera was shown to the jury, confirming his testimony and the statements made to him by defendant.

Additionally, the State and the defense stipulated that if Elora Wall was called to testify, she would be qualified as an expert in the analysis and identification of controlled dangerous substances. They further stipulated that if called to testify, Ms. Wall would have testified, in conformity with her report dated November 28, 2023, that in her expert opinion, the evidence in the instant case, listed as item number H- 21125-23, was found to contain cocaine. Ms. Wall’s report, which was admitted into evidence and published to the jury, showed that the gross weight of the cocaine was “0.38 gram(s) +/- 0.03 gram(s).” DISCUSSION Under the procedure adopted by this court in State v. Bradford, 95-929 (La.

App. 5 Cir. 06/25/96), 676 So.2d 1108, 1110-1111,9 appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

8 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 9In Bradford, supra, this court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 04/28/95), 653 So.2d 1176, 1177 (per curiam).

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