No. 01-14-01010-CR

In the 

Court of Appeals 

For the 

First Judicial District of Texas 

At Houston 



No. 1420051 

In the 337th District Court of

Harris County, Texas 



MARCUS D. JACKSON

Appellant 

v. 

THE STATE OF TEXAS

Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney 

Harris County, Texas 

CARLY DESSAUER

Assistant District Attorney 

JOSEPH SANCHEZ

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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/29/2015 2:50:56 PM CHRISTOPHER A. PRINE Clerk
ii

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 THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete 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 trial

Lauren Bard  Assistant District Attorney at trial

Erik Locascio  Assistant District Attorney at trial

Appellant or criminal defendant:

Marcus D. Jackson  pro se at trial

Counsel for Appellant:

Kyle B. Johnson  Attorney on appeal 

Alex G. Azzo  Standby attorney at trial

Trial Judge: 

Hon. Renee Magee

Hon. Jay W. Burnett

Hon. Lee Duggan

Hon. Leslie Brock Yates

Hon. A. Reagan Clark

Hon. Mike Wilkinson
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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 evidence 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......................................................................................... 11
iv

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, 

330 S.W.3d 633 (Tex. Crim. App. 2010)......................................................................... 4

Jackson v. Virginia, 

443 U.S. 307 (1979)........................................................................................................ 4, 6

STATUTES

TEX. HEALTH & SAFETY CODE ANN. §481.102(8) (West 2009) ...................................... 5

TEX. HEALTH & SAFETY CODE ANN. §481.115(a),(c) (West 2009) ................................. 5

RULES

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

Tex. R. App. P. 9.4(i)............................................................................................................ 10

Tex. R. App. P. 38.2(a)(1)(A)................................................................................................. ii

Tex. R. App. P. 39.1 ............................................................................................................... ii
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TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

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). He 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). The trial court sentenced him 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, particularly 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 man at a place where narcotics transactions usually 

occurred, and immediately turn 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). 
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After confirming that appellant 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 PCP 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 just trying to smoke them away” (6 RR at 36).

The combined weight of both cigarettes was 1.93 grams, and both tested 

positive for PCP (6 RR at 166, 167, 168). Chemist M. Kane, who tested the evidence,

noted that both cigarettes were discolored, which in her experience was a visible 

indicator 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 touched

(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 holding 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 ARGUMENT

The evidence 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 hands as PCP sticks, as appellant 

admitted to possessing PCP, as the chemist’s testified that in her experience, 

discolored cigarettes contain PCP most of the time, and as the record was not 

developed regarding how likely it could be for one PCP stick to contaminate an 

unadulterated cigarette, the jury’s verdict is 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 reasonable 

doubt that the amount of PCP that appellant possessed weighed more than 

one gram.

In his sole point of error, appellant 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 contamination 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. 

However, 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. Because the evidence that appellant possessed two PCP sticks at the time 
4

of his arrest rationally supports the jury’s determination of the weight of the 

controlled substance, appellant’s point of error should be overruled.

Standard of Review

Appellate courts 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 evidence in 

the light most favorable to the verdict, no rational jury 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 determine whether any rational 

fact finder could have found the elements of the offense beyond a reasonable doubt. 

Clayton v. State, 235 S.W.3d 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 such, 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 PCP. 

TEX. HEALTH & SAFETY CODE ANN. §481.102(8) (West 2009); TEX. HEALTH &

SAFETY CODE ANN. §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 under developed in this 

aspect. Indeed, the only evidence appellant can point to for his theory of 

contamination is Kane’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 could contaminate things by touch without providing any opinion as to how 

probable the likelihood of contamination would be when asked by appellant (6 RR at 

183). When questioning Kane at trial, appellant did not ask her specifically whether 

one PCP 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). 

Thus, the record presents no evidence that could undermine the jury’s verdict based 
6

on the theory that appellant makes on appeal because the evidence did not provide 

any indication of the likelihood of possible touch contamination.

The record simply does not contain enough information on the possibility of 

touch contamination to render the evidence insufficient. While appellant tries to 

buttress his theory of contamination by proposing that the jury could have made 

inferences about the probability of contamination based on the strong odor of the 

PCP, no rational jury could leap from the fact 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. Especially 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 cigarettes found in appellant’s possession contained PCP. Officer Sneed

testified that he identified 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 Officer Morelli also 

identified the cigarettes as PCP sticks because he labeled the evidence bag as such (6 

RR at 102-4, 181-81; 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 identifications from the time of appellant’s arrest, the manner in which the 

cigarettes appeared and the manner in which appellant carried them also supports the 
7

jury’s verdict. Morelli noted that both cigarettes were the same brand, and Sneed 

testified that appellant clasped both cigarettes in his hands (6 RR at 35, 105). Both 

officers testified that they suspected that appellant engaged in a hand-to-hand 

narcotics transaction with the unidentified man in the complex andsoon after 

discovered the PCP stick in his hands (6 RR at 31, 32, 118, 119). From this evidence, 

the jury could reasonably infer that appellant obtained both cigarettes from the same 

source and that both contained PCP. Given that both cigarettes were identified by 

the officers as PCP sticks when appellant was arrested, that they were the same brand, 

and that appellant held both in his hands after the hand-to-hand transaction, the 

evidence rationally supports the jury’s determination that both contained PCP.

Second, the evidence is sufficient to prove that both cigarettes contained PCP 

at the time of appellant’s arrest because Kane testifies that she 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 168, 180-81; 8 

RR at 5). She informed 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 168, 180-81; 8 RR at 5). Kane testified that when she is presented 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 with 
8

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 the same color as cigarettes that had tested positive 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 to support the jury’s determination. 

Finally, the evidence is sufficient because appellant admitted that he possessed

PCP when he encountered the officers. Appellant, when asked by Officer Sneed 

whether he was holding “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 cigarette of the same brand in his left hand 

(6 RR at 35, 105, 121). Appellant 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 is rational and supported by 

the evidence.

In 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 does 
9

not render the jury’s determination of the weight of the PCP in his possession 

irrational. Any rational jury could not reasonably conclude based on the evidence 

presented in the record that one PCP stick contaminated 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. Thus, this Court 

should overrule appellant’s point of error.

CONCLUSION

The State of Texas respectfully urges the Court to overrule appellant’s point of 

error and affirm his conviction.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Carly Dessauer

________________________________________________________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083

dessauer_carly@dao.hctx.net

curry_alan@dao.hctx.net
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CERTIFICATE OF COMPLIANCE

The undersigned attorney 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

________________________________________________________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083
11

CERTIFICATE OF SERVICE

The State will serve a copy of the foregoing instrument to appellant’s attorney 

though TexFile:

Kyle B. Johnson

Attorney at Law

The Kiam Building

929 Preston, Suite 200

Houston, Texas 77002

kbjohnsonlaw@sbcglobal.net

/s/ Carly Dessauer

________________________________________________________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083

Date: July 29, 2015