No. 01 -14-01010- CR In the Court of Appeals For the First Judicial District of Texas At Houston

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  No. 1420051 In the 337th District Court of Harris County, Texas

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### M ARCUS 

### D. J ACKSON Appellant
v. 

### T HE 

### S TATE OF 

### T EXAS Appellee

    

  STATE’S APPELLATE BRIEF

    

  D EVON A

NDERSON District Attorney Harris County, Texas C ARLY D ESSAUER Assistant District Attorney J OSEPH S ANCHEZ Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/755-5826 Fax No.: 713/755-5809 ORAL ARGUMENT NOT REQUESTED ACCEPTED 01-14-01010-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 7/29/2015 2:50:56 PM CHRISTOPHER PRINE

CLERKii STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of Appellate Procedure P. 39. 1 , the State does not requests oral argument.

IDENTIFICATION OF TH E PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2( a)(1)(A) , a com plete list of the names of all interested parties is provided below.
Counsel for the State: Devon Anderson

 District Attorney of Harris County Carly Dessauer

 Assistant District Attorney on appeal Joseph Sanchez

 Assistant District Attorney at tria l Lauren Bard

 Assistant District Attorney at trial Erik Locascio

 Assistant District Attorney at trial Appellant or criminal defendant: Marcus D. Jackson

 p ro se at trial Counsel for Appellant: Kyle B. Johnson

 Attorney on appeal Alex G. Azzo

 Standby a ttorney at trial Trial Judge: Hon. Renee Magee Hon. Jay W. Burnett Hon. Lee Duggan Hon. Leslie Brock Yates Hon. A. Reagan Clark Hon. Mike Wilkinsoniii TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT

................................ .................... ii
IDENTIFICATION OF THE PARTIES

................................ ................................ ......... ii
TABLE OF AUTHORITIES

................................ ................................ ............................. iv
STATEMENT OF THE CASE

................................ ................................ .......................... 1
STATEMENT OF FACTS

................................ ................................ ................................ .. 1
SUMMARY OF THE ARGUMENT

................................ ................................ ................. 3
REPLY TO APPELLANT’S POINT OF ERROR

................................ ......................... 3
I. The evidenc e presented at trial is sufficient to prove beyond a reasonable doubt that the amount of PCP that appellant possessed weighed more than one gram. ................................ ................................ ................................ ........................... 3
CONCLUSION

................................ ................................ ................................ ..................... 9
CERTIFICATE OF COMPLIANCE

................................ ................................ .............. 10
CERTIFICATE OF SERVICE

................................ ................................ ......................... 11iv TABLE OF AUTHORITIES
CASES Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010)

................................ ................................ ......... 4 Clayton v. State , 235 S.W.3d 772 (Tex. Crim. App. 2007)

................................ ................................ ..... 4, 6 Gear v. State , 340 S.W.3d 743 (Tex. Crim. App. 2011)

................................ ................................ ..... 4, 6 Isassi v. State , 33 0 S.W.3d 633 (Tex. Crim. App. 2010)

................................ ................................ ......... 4 Jackson v. Virginia , 443 U.S. 307 (1979)

................................ ................................ ................................ ........ 4, 6
STATUTES T EX
. H EALTH & S AFETY C ODE A NN . §481.102(8) (West 2009)

................................ ...... 5 T EX
. H EALTH & S AFETY C ODE A NN . §481.115 (a),(c) (West 2009)

................................ . 5
RULES Tex. R. App. P

. 9.4(g)

................................ ................................ ................................ ............. ii Tex. R. App. P. 9.4(i).

................................ ................................ ................................ ........... 1 0 Tex. R. App. P

. 38.2( a)(1)(A)

................................ ................................ ................................ . ii Tex. R. App. P

. 39.1

................................ ................................ ................................ ............... ii1

TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CAS E Appellant was charged with possession of a controlled substance, namely phencyclidine or PCP, weighing more than one gram and less than four grams (CR at 13; 6 RR at 167 ). H e entered a plea of not guilty, and a jury trial was held to determine guilt (CR at 88 , 109 ; 6 RR at 12 ). The jury found appellant guilty ( CR at 107, 109

- 10; 6 RR at 235 ). T he trial court sentenced h im to thirty

- five years
confinement in the Texas Department of Criminal Justice ( CR at 109

- 10; 7 RR at 61 ). The court certified appellant’s right to appeal, and appellant filed a timely notice of appeal (CR at 108 , 112

- 13 ).
STATEMENT OF FACTS
On March 4 , 2014, two officers, Jeffrey Sneed and Diego Morelli, were working an extra security job at an apartment complex (6 RR at 24, 26, 101). The complex was known for narcotics activity, p articular ly PCP, so the officers were suspicious when they saw appellant enter the complex through a pedestrian gate, walk across the parking lot, met an unidentified m a n at a place where narcotics transactions usually
occurred , and immediately t urn to leave (6 RR at 26, 27, 28, 29, 30, 31, 32, 47, 107, 111, 113, 116, 117). They suspected that a hand

- to

- hand narcotics transaction had just occurred , so they approached appellant while he was attempting to leave the complex (6 RR at 31, 32, 118, 119). Immediately the officers smelled the strong odor
of PCP surrounding appellant , so they stopped him (6 RR at 32

- 34, 47, 68, 119, 120).2

A fter confirm ing that a ppellant did not live at the apartment complex , Officer
Sneed asked appellant if he was “ holding a PCP stick ” (6 RR at 34, 35, 68, 119). Appellant said yes and held out his right hand to reveal a cigarette that had been dipped in PCP (6 RR at 33, 35, 48, 68, 96, 119, 120, 121). When the officers went to arrest appellant, they found another P CP stick in appellant’s other hand (6 RR at 35, 121). Appellant explained to Officer Sneed: “I’ve had rough times at the house. I was jus t trying to smoke them away” (6 RR at 36). The combined weight of both cigarettes was 1.93 grams , and both t ested positive for PCP (6 RR at 166, 167, 168). Chemist M. Kane, who tested t he evidence , noted that both cigarettes were discolored , which in her experience was a visible
ind icat o r that they probably contained PCP (6 RR at 168 , 171 , 180

- 81 ; 8 RR at 5 )

. On

cross

- examination, Kane agreed that cigarettes would absorb any liquid they tou c h ed (6 RR at 172). She also agreed that when PCP is a liquid, it can contaminate
substances it touches but stated that she did not know if it was possible for the plastic baggie hold ing the PCP sticks to be contaminated without testing (6 RR at 180). When asked again if PCP would contaminate anything it touches, Kane only testified that it was possible (6 RR at 183).3 SUMMARY OF THE ARGUM ENT
The evidenc e presented at trial is sufficient to prove beyond a reasonable doubt that appellant possessed over one gram of PCP at the time of his arrest . As both officers identified the cigarettes in appellant ’ s ha nds as PCP sticks, as appellant admitted to possessing PCP, as the chemist ’ s testi f ied that in her experience, discolored cigarettes contain PCP most of the time, and as the recor d was not developed regarding how l ikely it could be for one PCP stick to contaminat e an unadulterated cigarette , the jury ’ s verdict i s rational and supported by the evidence

.

REPLY TO APPELLANT’S POINT OF ERROR
I. The evidence presented at trial is sufficient to prove beyond a reasonabl e doubt that the amount of PCP that appellant possessed weighed more than
one gram . In his sole point of error, a ppellant argues that the evidence is insufficient to support the jury’s finding that appellant possessed more than one gram of PCP at the
time of his arrest. Appellant relies on a theory of contaminati on to contend that no
rational jury could have found the weight necessary to support appellant’s conviction because both PCP sticks in his possession were kept in the same plastic baggie

. H owever, in making this argument, appellant overlooks evidence in the record that supports the jury’s finding that appellant possessed over one gram of PCP and overlooks the dearth of evidence regarding the possibility of PCP contamination in
the record. B ecause the evidence that appellant possessed two PCP sticks at the time4

of his arrest rationally support s the jury’s determination of the weight of the
controlled substance , appellant’s point of error should be overruled.
Standard of Review Appellate court s review a challenge to the sufficiency of the evidence under the
standard announced in Jackson v. Virginia , 443 U.S. 307, 318

- 20 (1979)

. See Brooks v.
State , 323 S.W.3d 893, 894

- 95 (Tex. Crim. App. 2010) . Under the Jackson standard, evidence is insufficient to support a conviction if, considering all record eviden ce in the light most favorable to the verdict, no rational j ury could have found that each essential element of the charged offense was proven beyond a reasonable doubt. Jackson , 443 U.S. at 317

- 19; Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)

. Reviewing courts consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence to determin e whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt

. Clayton v. State , 235 S.W.3 d 772, 778 (Tex. Crim. App. 2007)

. The jury is the exclusive judge of the credibility of witnesses and the weight of
the evidence. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) . As su ch, the reviewing court defers to the jury to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from “basic facts to ultimate facts.” Jackson , 443 U.S. at 318 ; Clayton , 235 S.W.3d at 778

.5 Applicable Law A person commits an offense if he intentionally or knowingly possesses PC P

. T EX
. H EALTH & S AFETY C ODE A NN . §481.102 (8) (West 2009) ; T EX
. H EA LTH &
S AFETY C ODE A NN
. §481.115 (a),(c) (West 2009)

. Analysis Despite appellant ’ s contention that the evidence presented at trial was insufficient to show that he possessed more than one gram of PCP, any rational jury would have found that appellant had two PCP sticks in his hands when arrested. While appellant relies on a contamination theory to attack the sufficiency of the evidence, he ignores that the record before the jury was un der developed in this
aspect. Indeed, the only evidence appellant can point to for his theory of
contamination is K ane ’ s agreement to appellant ’s question that “PCP, it sucks in, it ’s a fluid, it sucks in, it takes up everything, filters, everything, whatever it touches ” (6 RR at 180)

. However, Kane only acknowledged in her testimony that it was possible that
PCP c ould contaminate things by touch without providing any opinion as to how
p robable the likelihood of contamination would be when ask ed by appellant (6 RR at 183). W h en questioning Kane at trial , appellant d id not ask h er specifically w hether

one P CP stick could contaminate a cigarette unadulterated with PCP by spending 49 days in the same bag

— the central claim he raises in his brief ; instead, appellant merely
asked if PCP contaminated the plastic baggie holding the evidence ( 6 RR at 180 ).
Thu s, the record presents no evidence that could undermine the jury ’ s verdict based6

on the theory that appellant makes on appeal because the evidence did not prov ide any indication of the likel ihood of p ossib le touch contamination. The record simply does not contain enough inf ormatio n on the possibility of
touch contam i n a tion to r ender the evidence insufficient

. While appellant tries to
b uttress his the ory of contamination by proposing that the jury could have made
inferen ce s about the probability of contamination based on the strong odor of the PCP, n o rational jury could leap from the f act that PCP smells strongly to the conclusion that the PCP in one cigarette would spread to the other cigarette if it did not already contain PCP

. Especia lly when considering the other evidence in the record that supports the jury ’ s finding regarding the weight of the PCP in appellant ’ s possession, the evidence is sufficient beyond a reasonable doubt. See Jackson , 443
U.S. at 317

- 19; Gear v. State , 340 S.W.3d at 746

. First, the evidence is sufficient because the officers presented evidence that
both c igarettes found in appellant ’s possession contain ed PCP. Officer Sneed
testified that he i dentified both cigarettes held in appellant ’ s hands as PCP sticks at the time of arrest ( 6 RR at 35 )

. Similarly, the jury could infer that O fficer Morelli also identified the cigarettes as PCP sticks because he labeled the evidence bag as such (6
RR at 10 2

- 4 , 18 1

- 81 ; State ’s Ex. 1 )

. See Clayton , 235 S.W.3d at 778 (noting that reasonable inferences can be made from the evidence presented at trial)

. Adding to
these identificat

ion s f rom the time of appellant ’ s arrest, the manner in which the cigarettes appeared and the manner in which appellant carried them also supports the7

jury ’ s verdict. Morelli noted that both cigarett es were the same brand , and Sneed
testified that appellant c lasped both cigarettes in his hands (6 RR at 35 , 105 ). Both officers testified that they s uspected that appellant engage d in a hand

- to

- hand
narcotics transaction with the unidentified man in the complex and soon after
discovered the PCP stick in his hands (6 RR at 31, 32, 118, 119 ). From this evidence, the jury cou ld reasonably infer that appellant obtained both cigarettes from the s ame

source and that b oth contained PCP. Given that both cigar ettes were identified by
the officers as PCP sticks when appellant was arrested, that they w ere the same brand , and that appellant held both in h is hands after the hand

- to

- hand transaction , the evidence rationally supports the jury ’s determination that both contained PCP. Second, the evidence i s sufficient to prove that both cigarettes contained PCP

at the time of appellant ’s arrest because Kane testifies that sh e anticipated that the cigarettes would contain PCP based on their appearance. Kane noted that both cigarettes were discolored in her testimony and in her report ( 6 RR at 1 68 , 180

- 81 ; 8
RR at 5 )

. She inform e d the jury that from her experience of testing similar evidence, she has recognized that when she tests discolored cigarettes “most of the time it’s
PCP ” (6 RR at 1 68 , 180

- 81 ; 8 RR at 5 ). Kane testified that when she is present ed with a discolored cigarette “ I still do the testing before I can tell exactly what’s present, because I have had [ sic

] cigarette before where there was nothing in there even though
it was discolored , ” but “most of the time when I get this color of manufactured cigarette, it comes back with positive for PCP ” (6 RR at 171 , 181 )

. Combined with8

Officer Morelli ’ s testimony that both cigarettes were in substantially the same condition at trial as they were when he took custody of them, Kane ’ s testimony that both cigarettes were th e same color as cigarettes that had tested positi ve for PCP in her experience strongly supports the jury ’ s finding that both cigarettes contained PCP
when Morelli bagged them as evidence (6 RR at 105). As such , the evidence is
sufficient t o support the jury ’s determination. Finally, the evidence is sufficient because appell ant admitted that he possessed
PCP when he encountered the officers

. Appellant, when asked by Officer Sneed
whether he was holdi ng “ a PCP stick, ” answered that he was and showed the officer the cigarette that he had in his right hand ( 6 RR at 35, 48, 68 , 119 , 120, 121 ). Mentioned above, appellant had a second ci garette of the same brand in his left hand (6 RR at 35 , 105 , 121 ). A ppellant also admitted that he knew PCP was bad for him to
smoke but needed it to help him cope with his troubles at home (6 RR at 35

- 36). Given this admission by appellant at the time of his arrest that he possessed PCP and held two cigarettes in his hands immediately after engaging in what appeared to be a
hand

- to

- hand transaction to the officers , the jury ’ s verdict i s rational and supported by
th e evidence.
I n light of this evidence that both cigarettes were identified as PCP sticks at the time of appellant ’s arrest , that the chemist ’s experience led her to anticipate that both cigarettes would contain PCP based on their shade of discoloration, and that appellant admitted to possessing PCP to the officers , appellant ’s theory of contamination does9

not render the jury ’s determination of the weight of the PCP in his possession
irrational . Any rational jury could not reasonabl y c onclu d e based on the evidence presented in the record that one PCP stick conta minated an unadulterated cigarette
while waiting testing . As such, the evidence sufficiently supports the jury ’s rational
determination that appellant possessed over one gram of PCP. T hus, t his C o urt should overrule appellant ’s point of error.
CONCLUSION The State of Texas respe ctfully urges the Court to overrule appellant’s point of
error and affirm his conviction.
D EVON A NDERSON District Attorney Harris County, Texas
/s/ 

# Carly Dessauer

______________________ ____________________________________________ _________________________________________________ _____________________________________________________________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Ho uston, Texas 77002 (713) 755

- 5826 State Bar No. 24069083 dessauer_carly@dao.hctx.net curry_alan@dao.hctx.net10 CERTIFICATE OF COMPL IANCE The undersigned a ttorney certifies that this computer

- generated document has
a word count of 2 ,058 words, based upon the representation provided by the word processing program that was used to create the document. Tex. R. App. P. 9.4(i)

.

/s/ 

# Carly Dessauer

______________________ _____________________________________________________________________________________________ _________________________________________________________ ____________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 State Bar No. 240690831 1 CERTIFICATE OF SERVI CE
The State will se rve a copy of the foregoing instrument to appellant’s attorney though TexFile:
K yle B. Johnson Attorney at Law The Kiam Building 9 29 Preston , Suite 2 00 Houston, Texas 770 02 k bjohnsonlaw @ s bc global.net

/s/ 

# Carly Dessauer

______________________ ____________ _________________________________________________________________________________ _____________________________________________________________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texa s 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 State Bar No. 24069083

Date: July 29, 2015