No. 03-14-00260-CR

In the 

Court of Appeals 

Of the Third Supreme Judicial District 

Austin, Texas 

FRANK RICCI FLORES, 

Appellant

v. 

The State of Texas, 

Appellee

Appeal from the 391st Judicial District Court 

Tom Green County, Texas 

Cause Number A-12-0701-SA

STATE’S BRIEF

Allison Palmer 

District Attorney 

51st Judicial District 

Leland Lacy 

Assistant District Attorney 

124 W. Beauregard, Suite B 

San Angelo, Texas 76903 

(325) 659-6583

(325) 658-6831 FAX 

Leland.lacy@co.tom-green.tx.us

State Bar No. 24057953 

Oral argument is not requested 

ACCEPTED

03-14-00260-CR

3599727

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/29/2014 11:07:16 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/29/2014 11:07:16 AM JEFFREY D. KYLE Clerk
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Table of Contents

Index of Authorities.............................................................................ii

Statement of the Case.......................................................................iii

Statement of Facts ............................................................................ 2

State's Counterpoint One .................................................................. 3

Summary of the State's Argument..................................................... 4

Argument and Authorities.................................................................. 4

Prayer ............................................................................................... 6

Certificate of Compliance .................................................................. 7

Certificate of Service ......................................................................... 7
ii

Index of Authorities

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................... 4

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)..................... 5

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................ 5
iii

Statement of the Case

Frank Ricci Flores was indicted on September 12, 2013, for 

Possession of a Controlled Substance, to-wit heroin less than a gram, 

enhanced to a Second Degree Felony by two prior convictions. (C.R. 

p. 7). Flores was found guilty of the indicted charge by a jury on 

February 25, 2014. (R.R. Vol. 5 p. 60). Flores elected to have the 

jury assess punishment. (C.R. p. 37). Flores pled “not true” to the 

enhancements. (R.R. Vol. 6 p. 13). The jury found the enhancements 

to be true and assessed punishment at 12 years confinement in 

Texas Department of Criminal Justice Institutional Division and a fine 

of $5,000.00. (R.R. Vol. 6 pp. 74-75). The Court sentenced the 

Defendant to that punishment. (R.R. Vol. 6. p. 77). Flores timely filed 

a Motion for New Trial and Motion in Arrest of Judgment stating that 

the verdict was contrary to the law and the evidence. (C.R. p. 65). 

This Motion contained a certification that a copy of the Motion was 

hand-delivered to the Trial Court. (C.R. p. 66). The Trial Court 

certified that Flores had the right to appeal. (C.R. p. 43).
1

No. 03-14-00260-CR

In the

Court of Appeals

Of the Third Supreme Judicial District

Austin, Texas

FRANK RICCI FLORES,

Appellant

v.

The State of Texas,

Appellee

Appeal from the 391st Judicial District Court

Tom Green County, Texas

Cause Number A-12-0701-SA

STATE’S BRIEF

To the Honorable Third Court of Appeals:

Now comes the State of Texas and files this brief in response to 

that of the appellant.
2

Statement of Facts

Flores was stopped for a traffic violation on May 18, 2012, by 

Officer Ryan Morgan of the San Angelo Police Department in the City 

of San Angelo, Tom Green County, Texas. (R.R. Vol. 4 p. 18). After 

Flores stopped his vehicle, he opened the door of the vehicle and 

exited the vehicle. (R.R. Vol.4 p. 19 lines 13-15). The officer saw two 

pill bottles in the driver’s door. (R.R. Vol. 4 p. 20 lines 21-25). One of 

the bottles was empty and one contained a small piece of heroin. 

(R.R. Vol. 4; p. 20 lines 3-6). Flores was taken to the Tom Green 

County jail and was searched prior to being taken into the jail. (R.R. 

Vol. 4 pp. 23 line 23 - p. 24 line 1). At this time the Flores was 

searched and another small amount of heroin was found in the 

baseball cap that was removed from the Flores’ head. (R.R. Vol. 4 p.

24 lines 3-11). Marissa Silva, a chemist with the Texas Department 

of Public Safety testified that the substance was heroin. (R.R. Vol. 4 

p. 54 lines 18-25). Silva also testified that the combined weight of the 

two separate packages of heroin was .18 grams and would be about 

the size of two eraser parts of the end of a pencil. (R.R. Vol. 4 p. 58 

lines 4-7).
3

Carlota Menchacha testified that she and the Flores were living 

together at the time the Defendant was arrested. (R.R. Vol. 5 p. 10 

lines 13 - p. 11 line 6). Menchacha further testified that she was in 

control of the automobile earlier in the day on the day the Flores was 

arrested. (R.R. Vol. 5 p. 11 lines 8-9). Menchacha testified that the 

insurance on the vehicle was in her name. (R.R. Vol. 5 p.13 lines 1-9) 

She testified that she had used the vehicle earlier in the day and had 

purchased heroin and had left the herion in the car (R.R. Vol. 5 p. 15 

line 5 - p. 16 line 20). Specifically Menchacha testified that she left 

one “paper” of heroin in a pill bottle and one “paper” in a cap. (R.R. 

Vol. 5 p. 18 lines 18-21). Ms. Menchacha testified that Flores was 

not aware that the drugs were in the car. (R.R. Vol. 5 p. 18 line 25; p. 

19 line 9). 

State’s Counterpoint One

The verdict is supported by legally sufficient evidence. 
4

Summary of the Argument

Officer Morgan testified that he found heroin inside a pill bottle 

in a car under the Appellant’s sole care, custody and control. Officer 

Morgan testified that he found heroin within Appellant’s hat during a 

search at the jail. A chemist with the Midland crime lab testified that 

the substance was heroin. 

Argument and Authorities

In Texas, evidence to support a verdict is legally sufficient if 

viewed in a light most favorable to the verdict, the evidence, and all 

reasonable inferences there from would allow a rational trier of fact to 

find the essential elements of the crime beyond a reasonable doubt. 

Brooks v. State, 323 S.W.3d 893, 895, 916 (Tex. Crim. App. 2010).

Officer Morgan testified at trial that the alleged heroin was found 

in a pill bottle that was found within the door panel in appellant’s car. 

(R.R. Vol. 4 pp. 20). Officer Morgan testified that when he searched 

Appellant at the jail another paper of heroin was found in the 

Appellant’s hat. (R.R. Vol. 4 p. 24). 
5

When conducting review on appeal, an appellate court is required 

to defer to the jury's role as the sole judge of witness credibility, and the 

weight their testimony is to be afforded. Dewberry v. State, 4 S.W.3d 

735, 740 (Tex. Crim. App. 1999). To find legal sufficiency, "[e]ach fact 

need not point directly and independently to the guilt of the defendant, 

as long as the cumulative force of the incriminating circumstances is 

sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 

(Tex. Crim. App. 2007). Menchacha testified that she had purchased 

the heroin found in the defendant’s hat and the heroin that was found in 

the pill bottle she had purchased previously. (R.R. Vol. 5 pp. 15-18). 

Menchaca also testified that she could not remember the name of the 

person she bought the heroin from or the location of where the heroin 

was purchased (R.R. Vol. 5 pp. 30-31). Menchacha testified to being 

a daily heroin user for three years prior to Appellant’s arrest for this 

offense. (R.R. Vol. 5 pp. 30-33). The jury determined that 

Menchacha’s testimony was not credible and did not overcome the 

other evidence of the appellant’s guilt that was presented at trial. The 

evidence that the Appellant was in exclusive control of the car and the 
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hat where the officer located the heroin would allow a rational trier of 

fact to find that Appellant possessed the heroin. 

Prayer

The State asks this Court to overrule the appellant’s points of 

error and to affirm the trial court’s judgment.

Respectfully submitted,

Allison Palmer

District Attorney

_____________________

Leland Lacy

Assistant District Attorney

State Bar No. 24057953
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Certificate of Compliance

Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby 

certify, based upon the computer program used to generate this brief, 

that this brief contains 667 words, excluding words contained in those 

parts of the brief that Rule 9.4(i) exempts from inclusion in the word 

count. I further certify that this brief is printed in a conventional, 14-

point typeface.

_____________________

Leland Lacy

Certificate of Service

I hereby certify that, on the 22nd day of December, 2014, a true 

and correct copy of this motion was served, by U.S. mail, electronic 

mail, facsimile, or electronically through the electronic filing manager, 

to the appellant’s attorney, Thomas W. Watson, Attorney at Law,

2441 S. 1st St, Abilene, TX 79605, tom@mehaffeyandwatson.com.

_____________________

Leland Lacy