Stephanie Maie Heintzlemann v. State

Opinion

ACCEPTED 03-15-00258-CR 8080310 THIRD COURT OF APPEALS N O . 03>15-00258-CR AUSTIN, TEXAS 12/3/2015 4:11:13 PM JEFFREY D. KYLE CLERK I N T H E C O U R T O F APPEALS

O F T H E T H I R D D I S T R I C T O F TEXAS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/3/2015 4:11:13 PM STEPHANLE M A I E H E I N T Z L E M A N N , JEFFREY D. KYLE Clerk Appellant

V.

T H E STATE O F TEXAS Appellee

Appeal i n Cause N o . 42636 i n the 3 3 ^ Judicial District Court o f Burnet County, Texas

Brief For Appellee

OFFICE OF D I S T R I C T A T T O R N E Y 33^^ and 424'^ J U D I C L \ D I S T R I C T S

Gary W . Bunyard Assistant District Attorney P. O . Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us State Bar. N o . 03353500

A T T O R N E Y FOR APPELLEE

December 03, 2015

Oral Argument Waived Identity Of The Parties

Trial Court

Honorable J. Allan Garrett 424'^ Judicial District Burnet County Courthouse Annex (North) 1701 East Polk St., Suite 74 Burnet, T X 78611

State/Appellee

Blake Ewing (Pre-Trial and Trial Counsel) Assistant District Attorney (former) P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 24076376

Richard S. Crowther (Pre-Trial and Trial Counsel) Assistant District Attorney (former) 1701 E. Polk St., Suite 24 Burnet, T X 78611 (512) 756-5449 State Bar N o . 05174200

Gary W . Bunyard (Appellate Counsel) Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 03353500 g.bunyard@co.llano.tx.us

ii Appellant

Richard D . Davis (Pre-Trial and Trial Counsel) P.O. Box 398 Burnet, Texas 78611 (512)756-5117 State Bar N o . 05537100

Barton Joseph Vana (Trial Counsel) 101 Highway 281 N o r t h , Suite 205C Marble Falls, Texas 78654 (830)385-2694 State Bar N o . 24084441

Alice Price (Appellate Counsel) Attorney at Law 408 South Liveoak Lampasas, Texas 76550 State Bar N o . 00786177

Stephanie Maie Heintzleman (Appellant) T D C J N o . 01984380 SID N o . 50365208 William P. Hobby U n i t 742 F M 712 M a r l i n , T K 76661 Table Of Contents

Page

Index o f Authorities v

Statement o f the Case 1

Statement on Oral Argument 1

Response to Issues Presented 2

Statement o f the Facts 3

Summary o f the Argument - Issue N o . 1 5

There are sufficient affirmative links between Appellant and the contraband to support a conviction for Possession o f a Controlled Substance, Penalty Group 1 - Methamphetamine, I n A n Amount o f One Gram or More But Less Than Four Grams W i t h Intent to Deliver.

Argument on Issue N o . 1

1.1 Principals of Law 6

1.2 Applicable Facts 9

13 Discussion and Conclusion 10

Prayer for Relief. 14

Certificate o f Word Count 15

Certificate o f Service 15

iv Index Of Authorities

Case Law Page

Brooks V. State, 323 S.W.3d 893 (Tex. C r i m . App. 2010)

Cedano v. State, 24 S.W.3d 406,411 (Tex. App.— Houston [1st Dist.] 2000, no pet.)

Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—

Houston [1st Dist.] 1989, pet. ref d) 8

Esquivel v. State, 506 S.W.2d 613 (Tex. C r i m . App. 1974) 6

Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref d) 8

Hernandez v. State, 538 S.W.2d 127 (Tex. C r i m . App. 1976). 6

Jackson V. Virginia, 443 U.S. 307; 99 S. Ct. 2781;

61 L . Ed. 2d 560 (1979) 6

Johnson v. State, 658 S.W.2d 623, 627 (Tex. C r i m . App. 1983) 7

Lafoon v. State, 543 S.W.2d 617 (Tex. C r i m . App. 1976) 6

Washington v. State, 902 S.W.2d 649, 652 (Tex. App.— Houston [14th D i s t ] 1995, pet. ref d) 8 Constitutions

None cited

V Statutes/Rules

Tex. Penal Code § 1.07 (39)

Tex. Penal Code § 6.01 (b)

Tex Penal Code § 7.02 (a)(2)

Treatises/Publications

None cited statement Of The Case

Appellant has reasonably stated the Statement o f the Case.

Statement on Oral Argument

The undersigned waives Oral Argument. The undersigned does not believe that

Oral Argument w i l l be beneficial for this case for the reason that the issues contain

complex nuances and the Appellant has waived Oral Argument as well. I n such

event that this Court should believe that Oral Argument would assist the Court, the

undersigned w i l l gladly participate.

1 R e s p o n s e to I s s u e s Presented

Issue N o . One: There are sufficient affirmative links between Appellant and

the contraband to support a conviction for Possession o f a Controlled

Substance, Penalty Group 1 - Methamphetamine, I n A n Amount o f One

Gram or More But Less Than Four Grams W i t h Intent to Deliver.

2 statement Of TIte Facts

Appellant has not adequately described the Statement of the Facts.

On February 15, 2014, Granite Shoals Police Officer Robert Chrane conducted

a traffic stop on a 1998 Pontiac Grand A m w i t h i n Granite Shoals, Texas. RR

Vol. 3 Pages 95 - 96. The vehicle was being operated by Grant Cole. RR Vol. 3

Page 97. Appellant was the passenger and the owner o f the vehicle. RR Vol. 3

Pages 9 8 , 1 0 9 - 112.

The operator, Grant Cole, was arrested for outstanding warrants, RR Vol. 3

Page 97. Granite Shoals Sergeant Chris Decker made contact w i t h Appellant and

determined that the majority o f the contents of the vehicle belonged to Appellant.

RR Vol. 3 Pages 109 - 112. Sergeant Decker asked Appellant for consent to search

the vehicle and Appellant granted this request. RR Vol. 3 Page 114.

In a bag that was located between Appellant's leg and the center console, Sergeant

Decker found a soda straw that had been modified i n a way that it could be used for

ingesting powder-like substances. RR Vol. 3 Page 116. Inside the straw was a

powdery residue. RR Vol. 3 Page 116. Also inside this bag were two glass pipes,

one containing suspected methamphetamine and the other containing marihuana.

3 RR Vol. 3 Page 118. Also located i n this bag were female items such as sunglasses

and makeup, things o f that nature. RR Vol. 3 Page 116, 161.

I n a "cheetah print" bag located i n the passenger compartment o f the vehicle.

Sergeant Decker found plastic baggies containing numerous small babies w i t h clear

crystal substance inside. RR Vol. 3 Page 121. These were jeweler-style baggies,

small zip-style babies, w i t h i n a larger jewelry-style baggie as well as a $50 bill and

$1 bill inside that drawstring pouch w i t h both o f the bills contained crystalized

substance on the surface o f what obviously under the flashlight o f having some sort

o f crystallized substance on them. RR Vol. 3 Pages 121 - 122, 125 - 126. This bag

was observed by Sergeant Decker to originally be located underneath Appellant's

legs i n front o f the passenger seat. RR Vol. 3 Page 121,152, 160 - 161.

Officer Chrane, while assisting w i t h the search, found i n the center console a

glass pipe w i t h a bowl at the end that contained powdered residue that was believed

to be methamphetamine. RR Vol. 3 Page 99.

The suspected methamphetamine was tested at the DPS Crime Lab and

determined to contain 3.52 grams o f methamphetamine. RR Vol. 4 Pages 16 - 19.

4 Summary Of The Argument on Issue No, 1

There are sufRcient affirmative links between Appellant and the

contraband to support a conviction for Possession of a Controlled

Substance, Penalty Group 1 - Methamphetamine, In An Amount of

One Gram or More But Less Than Four Grams With Intent to

Deliver.

Appellant argues that there is no evidence o f an affirmative link or connection

between Appellant and the contraband under the "Link Doctrine". Appellee asserts

that there is ample circumstantial evidence to support the jury's verdict that

Appellant is Guilty o f this offense.

5 Argument On Issue No, i

1.1 Principals of Law

O n the question o f sufficiency o f the evidence, the relevant question is whether,

after viewing the evidence i n the light most favorable to the prosecution, any rational

trier o f fact could have found the essential elements o f the crime 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, 900 (Tex. C r i m . App. 2010). This

standard gives full play to the responsibility o f the trier o f fact fairly to resolve

conflicts i n the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Id. Once a defendant has been found guilty o f

the crime charged, the factfinder's role as weigher o f the evidence is preserved

through a legal conclusion that upon judicial review all o f the evidence is to be

considered i n the light most favorable to the prosecution. Id.

The j u r y may believe some witnesses and refuse to believe others, and it may

accept portions o f the testimony o f a witness and reject other portions. Lafoon v.

State, 543 S.W.2d 617 (Tex. C r i m . App. 1976); Hernandez v. State, 538 S.W.2d 127

(Tex. C r i m . App. 1976); Esquivel v. State, 506 S.W.2d 613 (Tex. C r i m . App. 1974).

6 The term "possession" means actual care, custody, and control. Tex. Penal Code

§ 1.07 (39).

Possession is a voluntary act i f the possessor knowingly obtains or receives the

thing possessed or is aware o f his/her control o f the thing for a sufficient time to

permit him/her to terminate his/her control. Tex. Penal Code § 6.01 (b).

A person is criminally responsible for an offense committed by the conduct o f

another if:

(2) acting w i t h intent to promote or assist the commission o f the offense, he/she solicits, encourages, directs, aid, or attempts to aid the other person to commit the offense. Tex Penal Code § 7.02 (a)(2).

W h e n the accused is not i n exclusive possession o f the place where the

contraband is found, the State must show additional affirmative links between the

accused and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex.

App.—Houston [1st Dist.] 2000, no pet.). A n affirmative link generates a

reasonable inference that the accused knew o f the contraband's existence and

exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. C r i m . App.

1983).

Some relevant factors that may affirmatively link an accused to contraband

include: (1) the defendant's presence when a search is conducted; (2) whether the contraband was i n plain view, (3) the defendant's proximity to and the accessibility

o f the narcotic; (4) whether the defendant was under the influence o f narcotics when

arrested; (5) whether the defendant possessed other contraband or narcotics when

arrested; (6) whether the defendant made incriminating statements when arrested;

(7) whether the defendant attempted to flee; (8) whether the defendant made furtive

gestures; (9) whether there was an odor o f contraband; (10) whether other

contraband or drug paraphernalia were present; (11) whether the defendant owned

or had the right to possess the place where the drugs were found; (12) whether the

place where the drugs were found was enclosed; (13) whether the defendant was

found w i t h a large amount o f cash; and (14) whether the conduct o f the defendant

indicated a consciousness o f guilt. Washington v. State, 902 S.W.2d 649, 652 (Tex.

App.—Houston [14th Dist.] 1995, pet. refd); Chavez v. State, 769 S.W.2d 284,

288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. refd). The number o f linking

factors present is not as important as the "logical force" they create to prove the crime

was committed. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st

Dist.] 1994, pet. refd).

8 12 Applicable Facts

Appellant was the passenger and the owner o f the vehicle at the time o f the traffic

stop. RR V o l . 3 Pages 98,109 - 112. Appellant told officers that the majority o f the

personal items i n her vehicle belonged to her. RR Vol. 3 Pages 109 - 112. The

only other occupant i n the vehicle. Grant Cole, testified at trial that all o f the bags

which contained narcotics entered into evidence belonged to h i m despite the fact

that they were "girlie" i n nature. RR Vol. 4 Page 26.

After denying that contraband is present i n the vehicle. Appellant gave consent

for the officers to search Appellant's vehicle and belongings. RR Vol. 3 Page 114.

I n a bag that Sergeant Decker had observed was under Appellant's legs i n front

o f the passenger seat while Appellant was still i n the vehicle, officers found the 3.52

grams o f methamphetamine that is the subject o f this prosecution together w i t h

drug paraphernalia. RR Vol. 3 Page 121, 152, 160 - 161; Vol. 4 Page 17.

Located i n a second bag which was observed to also be i n the front passenger

compartment and was situated between Appellant's leg and the center console was

various items o f drug paraphernalia and female items. RR Vol. 3 Page 116, 118,

161.

A t trial the driver o f the vehicle, Grant Cole, testified that the narcotics and the

meth pipe all belonged to h i m and that Appellant had no knowledge o f the items.

9 RR V o l . 4 Pages 24 - 26. Cole testified that when the officer turned o n his lights,

Cole removed the drugs from his pants pocket and put them i n a pouch/bag i n the

back seat without Appellant's knowledge. RR V o l . 4 Pages 24 - 25, 40.

O n cross-examination. Cole acknowledged that Appellant was w i t h Cole when

Cole purchased methamphetamine on a different occasion as well as the

methamphetamine that is the subject o f this case. RR Vol. 4 Pages 29 - 30, 38.

IJ Discussion and Conclusion

I n this case virtually the total argument o f Appellant is a loose comparison o f the

facts before the j u r y to each o f the non-exclusive factors to consider i n determining

possession. When referring to several o f the factors Appellant at times modified the

description o f the factor.

One significant point i n Appellant's argument is concerning the factor o f

consideration as to whether or not the accused the owner o f the premises.

Appellant's argument is that this case involved an automobile meaning that it was

not a premise that qualifies for consideration. Whether they may or may not be

technically called premises. Appellant was the acknowledged owner o f the vehicle

10 and o f the bag i n which the narcotics were found. Again, the list o f factors is non-

exclusive and there is no authority that the factfinder can not consider ownership o f

items capable o f containing contraband inside the items i n the same way that a

residence is considered as premises.

Another factor argued by Appellant is that the narcotics were found i n different

bags distributed throughout the vehicle and therefore not accessible to Appellant.

Yet a close review o f the record shows that the narcotics which are the subject o f this

prosecution were i n fact located i n one single, unlocked bag that was underneath

Appellant's legs i n the front passenger portion o f the vehicle. By having this bag

positioned between her legs and the seat, as opposed to be jumbled i n w i t h all o f the

other bags i n the back seat area, a rational j u r y could infer this to be an affirmative

act o f security on the part o f Appellant as well as a demonstration that the bag and

its contents were more important to Appellant than the other bags. One other bag

located between Appellant's leg and the center console contained paraphernalia w i t h

residue that was not tested by the laboratory and other paraphernalia w i t h untested

residue was found i n the center console.

Appellant next argues that because the paraphernalia was not i n plain sight it was

not "near" Appellant- The bulk o f the paraphernalia was i n the two unlocked bags,

which Appellant acknowledged to officers belonged to her and were both located by

11 Appellant's legs, one under the legs and one next to the legs, again an act a rational

j u r y could find to be a demonstration o f importance and security. The remaining

paraphernalia was inside the center console compartment which was i n Appellant's

car and next to Appellant's seat.

Appellant also argues that no bag was linked as Appellant's sole property. Yet

Appellant told the officers at the beginning o f the stop that the majority o f the bags

belonged to her. A t trial Appellant's only witness. Grant Cole, testified that he

owned all o f the "girlie" bags i n which the narcotics were located yet he also testified

that the bag i n which he hurriedly put the narcotics and the meth pipe was i n the

rear portion o f the passenger compartment. Under this record it was quite

reasonable for the j u r y to resolve this conflict i n favor o f conviction.

Also before the j u r y was Cole's acknowledgment that Appellant was w i t h Cole

on two occasions when Cole purchased methamphetamine. Once when Cole was

arrested for that possession and the other time when Cole purchased the

methamphetamine that is the subject o f this prosecution. A rational j u r y could infer

from this evidence that Appellant allowed Cole to place his narcotics i n her bag

located beneath her legs and was thereby acting w i t h intent to promote or assist Cole

i n the commission o f the crime by aiding or assisting h i m i n hiding and transporting

the narcotics, i f Appellant was not outright i n exclusive possession o f the narcotics.

12 Even i f the evidence presented through the testimony o f Grant Cole could

inferentially raise an issue as to whether Appellant's possession or control o f the

narcotics was involuntary, Appellant could have, from the outset, informed Sergeant

Decker that Cole had put drugs i n the bag i n front o f her seat which would be an act

o f termination o f the possession or control as contemplated i n Tex. Penal Code §

6.01 (b). However she did not do so which demonstrated the voluntariness o f her

possession and control o f the narcotics.

Considering all o f these facts which were before this jury, it is reasonable to

conclude that the j u r y resolved all conflicts i n the testimony, weighed the evidence,

and drew reasonable inferences from basic facts to ultimate facts i n rendering a

verdict o f Guilty. For these reasons the relief being requested by Appellant should

be denied and the judgment o f conviction and sentenced entered i n this cause be

affirmed.

13 PRAYER FOR R E L I E F

WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny

the relief requested by Appellant and affirm the judgment o f conviction and sentence

entered against Appellant.

Respectfully submitted,

OFFICE OF D I S T R I C T A T T O R N E Y 33^^ and 424'^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O . Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274

Assistant District Attorney State Bar N o . 03353500 g. bunyard @ CO. 1 lano .tx. us A T T O R N E Y F O R APPELLEE

14 C E R T I F I C A T E OF WORD C O U N T

This is to certify that the pertinent portion o f this brief contains 2,247 words printed i n Aldine401BT 14 font, according to the WordPerfect^" X 7 word count tool.

C E R T I F I C A T E OF SERVICE

This is to certify that a true copy o f the above and foregoing instrument, together w i t h this proof o f service hereof, has been forwarded on the 3rd day o f December 2015, to Alice Price, Attorney for Appellant, by email and by EServe.

Assistant District Attorney