No. 03-14-00473-CR IN THE COURT OF APPEALS OF THE THIRD SUPREME JUDICIAL DISTRICT

____________________________________________

SHAWN MICHAEL WALKER,

Appellant,

v. STATE OF TEXAS

____________________________________________

Appeal in Cause No. 72029 in the 264th District Court of Bell County, Texas

_____________________________________________ REPLY BRIEF FOR APPELLANT SHAWN MICHAEL WALKER

_____________________________________________

JOHN A. KUCHERA 210 N. 6th St. Waco, Texas 76701 (254) 754-3075 (254) 756-2193 (facsimile) SBN 00792137 johnkuchera@210law.com Attorney for Appellant ACCEPTED 03-14-00473-CR 4146323 THIRD COURT OF APPEALS

AUSTIN, TEXAS 2/13/2015 1:51:41 PM JEFFREY D. KYLE

CLERKii Table of Contents Page Table of Contents ii Table of Authorities iii-v Walker never said that the pink methamphetamine was his and that he 1-5 believed it to be only “cut” To separately analyze each individual location wher e methamphetamine 5-7 was found (to determine if an inference of possessi on is warranted) is not the same as addressing each “affirmative link” sepa rately It is not within the province of the jury to determ ine whether inferences 8-19 it makes are reasonable. And the inferences the St ate asks this Court to make are not reasonable because they are not supported by a “chain of factual evidentiary antecedents.” (i) Rules for determining whether an inference is reasonable 9-11 (ii) Instructive cases – inference of possession w as not reasonable 11-13 (iii) Instructive cases – inference of possession was reasonable 13-15 (iv) The State’s inferences are not reasonable 15-19

Certificate of Service 19 Certificate of Compliance 20iii Table of Authorities Page(s) Cases Brewer v. State , 126 S.W.3d 295, 297 Tex.App. ......................

................................................... . 10 Brown v. State , 911 S.W.2d 744 (Tex. Crim. App. 1995) ............. ................................................ 6 County Court of Ulster County, N.Y. v. Allen , 442 U.S. 140 (1979) ...............................

................................................... ............ 9 Evans v. State , 202 S.W.3d 158 (Tex. Crim. App. 2006) ............. .............................. 5, 6, 7, 8, 14 Evans v. State , 98 So. 440 (Miss. 1924) ...........................

................................................... ........ 15 Fisher v. State , 121 S.W.3d 38 (Tex.App.—San Antonio 2003, pet. ref’ d) ................................ 11 Franco v. State , 82 S.W.3d 425 (Tex. App.—Austin 2002, pet. ref'd) . ........................................ 10 Grant v. State , 989 S.W.2d 428 (Tex.App.—Houston [14th Dist.] 1999, no pet.) .... 9, 14, 15, 17 H & R Block E. Enterprises, Inc. v. Swenson , 2008 WI App 3, 307 Wis. 2d 390, 745 N.W.2d 421 .... ........................................ 8 Luke v. State , No. 14-99-01358, 2001 WL 82934 (Tex.App.—Houston [1 4th Dist.] 2001, no pet.) (unpublished) ............... ................................................ 17 , 18 Mahaffey v. State , 364 S.W.3d 908 (Tex. Crim. App. 2012) ............. .............................................. 10 Marquez v. State , 921 S.W.2d 217 (Tex. Crim. App. 1996) ............. .............................................. 10iv

Moreno v. State , 821 S.W.2d 344 (Tex.App.-Waco 1991, pet. ref'd) ... ........................................... 6 Nguyen v. State , 222 S.W.3d 537 (Tex. App.—Houston [14th Dist.] 2007 , pet. ref'd) ................ 11 Paulman v. State , No. 2-07-291-CR, 2008 WL 4531707 (Tex.App.—Fort Wor th Oct. 9, 2008, pet. dism’d) (unpublished) ...............

................................................... .... 6 People v. Davis , 663 N.E.2d 39 (Ill. App. Ct. 1996) ................

................................................... .. 10 Peters v. Texas Dept. of Pub. Safety , 404 S.W.3d 1 (Tex.App.—Houston [1st Dist.] 2013, no pet.) ............................. 8 State v. Guinn , 242 S.W.3d 479 (Mo. Ct. App. 2008) ................ ................................................ 13 State v. McClain , 968 S.W.2d 225 (Mo. Ct. App. 1998) ................ ...................................... 6, 12, 13 State v. Moiser , 738 S.W.2d 549 (Mo. Ct. App. 1987) ................

.................................................. 6 Tot v. United States , 319 U.S. 463 (1943) ...............................

................................................... ............ 9 United States v. Hernandez-Beltran , 867 F.2d 224 (5th Cir. 1989) ......................

................................................... ....... 6 United States v. Longoria , 569 F.2d 422 (5th Cir. 1978) ......................

................................................... ..... 18 United States v. Stewart , 145 F.3d 273 (5th Cir. 1998) ......................

................................................... ... 4, 5 United States v. Townsend , 474 F.2d 209 (5th Cir. 1973) ...................... .............................................. 9, 1 1, 12 Young v. Wainwright , 439 F.2d 426 (5th Cir. 1972) ......................

................................................... ..... 12v

Other Authorities Black's Law Dictionary (6th ed. 1990) .............

................................................... .... 10 New Webster’s Dictionary of the English Language ( 1971).................................. 101 IN THE COURT OF APPEALS OF THE THIRD SUPREME JUDICIAL DISTRICT

___________________________________________________ __________
SHAWN MICHAEL WALKER, Appellant,

v. No. 03-14-00473-CR

STATE OF TEXAS

___________________________________________________ _________ Appeal in Cause No. 72029 in the 264th District Court of Bell County, Texas

___________________________________________________ _________ REPLY BRIEF OF APPELLANT SHAWN MICHAEL WALKER

___________________________________________________ _________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APP EALS: NOW COMES SHAWN MICHAEL WALKER, Appellant, by and through undersigned counsel, and submits this reply brief p ursuant to the provisions of the Texas Rules of Appellate Procedure. Appellant rai sed two issues in his principal brief. The State has filed its Brief. This Reply Brief is a response to several assertions made by the State regarding Walker’s fir st issue. Appellant otherwise rests on his principal brief.2

Regarding Walker’s first issue: Whether the evidence was sufficient to sustain Walker’s possession with intent conviction as a pri ncipal.

1. The State repeatedly states that there was evidence that Walker actually said that the pink methamphetamine was his but that he believ ed it to be only “cut”: The appellant stated that the pink substance was hi s, but insisted that it was not methamphetamine but only “cut”, apparently referring to MSM. (RR5 – 13, 21, 23). He identified the pictur e of that pink substance recovered from the van. (State’s Exhibit 10). (RR5 – 11). State’s Brief, pg. 7. [Appellant] admitted that [the pink methamphetamine ] belonged to him but insisted that it was “cut” instead of methamphe tamine itself. State’s Brief, pg. 14. Appellant . . . admitted ownership of the “pink” me thamphetamine, while claiming that it was only “cut.” State’s Brief, pg. 15. The fact that [Appellant] admitted possession of wh at tested as more than 5 grams of methamphetamine while claiming that it was only a substance dealers used to dilute and add weight to the controlled substance surely supports an inference that he was aware of the contraband in the van and exercised care, custody, control, or management of it. State’s Brief, pgs. 15-16. Appellant admitted that the “pink” methamphetamine belonged to him, while denying its identity. State’s Brief, pg. 19. The Appellant claimed ownership of the “pink” metha mphetamine3

found near a major quantity, expressing the mistake n belief that it was only “cut.” There was nothing in the evidence to s how why he would possess “cut” except as part of the distribution of the methamphetamine. State’s Brief, pg. 22.
Appellant’s reply Walker never

said the pink methamphetamine was his and he never said it was “cut.” Walker did not testify at trial. The State did introduce a videotaped interview of Walker - State’s Exhibit 24. It is worth noting that the State’s brief does not cite to the interview itself. This is because nowhere i n that interview did Walker ever say the pink methamphetamine was his and nowhere in the interview did he ever say he thought it was cut. 1 The State instead cites to the trial testimony of what others said about the interview: Vol. 5, pg. 13: State: Now, the pink methamphetamine, the stuff th at the defendant said was his and that you had the conversation with him about? Defense Counsel: Objection. Misstatement of the e vidence. Here, the “testimony” is actually a question posed by the State to which Walker objected as being a misstatement of the evidence.
Vol. 5, pg. 21:

1 Walker did say at one point “I don’t know how she got it pink.” Ex. 24, 4:10:01.4

State: In the interview, the defendant talks about MSM, correct? Detective Mallow: Yes, sir. Vol. 5, pgs. 22-23: State: Now, in this case, in your interview, you t alked to the defendant about the pink dope, correct? Detective Mallow: Yes, sir. State: And that’s what he was primarily focused on , on testing it and making sure that it is dope? Detective Mallow: Right. Because he told me it wa s MSM. But in the actual interview, Walker never says the words “cut” or MSM.” “We have seen the tape.” This quote comes from United States v. Stewart, 145 F.3d 273 (5th Cir. 1998) wherein the Fifth Circ uit reversed appellant’s aiding and abetting possession with intent to deliver coca ine conviction. Stewart was driving a vehicle (that belonged to the passenger) and was stopped for a traffic violation. Stewart hesitated when asked for consen t to the search the vehicle but the passenger gave consent to search and two weapons we re found. As officers were searching the passenger incident to arrest, they fo und 96 grams of crack cocaine in his underwear. Id. at 275. The government relied on the arresting off icer’s testimony regarding Stewart’s conduct. The Fifth Circuit relied instead on the videotape of the incident: [T]he government offers evidence from Garney [arres ting officer] that Stewart appeared nervous during the traffic stop. Having reviewed the5

videotape recording of the entire stop, we find no support f or the proposition that Stewart was unusually nervous or f idgety. Stewart was no more nervous during the stop than any other citi zen who has been stopped on the side of the road by a police officer and required to stand outside his vehicle for more than forty minutes. . . . The government contends that Stewart hesitated before giving conse nt to search the vehicle, and then shrugged non-committally. The go vernment cites this conduct as evidence of guilty knowledge. We have seen the tape. Once again, there is nothing surprising about Stewart’s conduct. The car was not his. (emphasis added) Id. at 278. Likewise in the instant case, this Court need not defer to the trial testimony of the State’s witnesses as to what said Walker suppos edly said in the interview – this Court can simply listen to the interview to hear wh at he actually did say – and did not say.

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2. The State takes Walker to task for analyzing the “e videntiary links” separately instead of as a whole, citing Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006): The Appellant attempts to take these evidentiary li nks and separately consider them, arguing in essence that each link al one is insufficient to prove possession. That, however, is not the test, but rather the question is whether all the evidence, direct and circumstant ial, when combined establishes a link with the contraband. State’s Brief, pg. 15.

Appellant’s reply6

The State confuses multiple evidentiary links with multiple locations of a controlled substance. As Walker pointed out in his principal brief (pages 6-7), possession is “location specific ”; i.e. when a controlled substance is found in multiple locations, each location must be analyzed separately to determine whether there is evidence tending to tie the defendant to t hat location. In support of this argument, Walker specifically cited as authority Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995); Moreno v. State, 821 S.W.2d 344 (Tex.App.-Waco 1991, pet. ref'd); United States v. Hernandez-Beltran, 867 F.2d 224 (5th Cir. 1989) and Paulman v. State, No. 2-07-291-CR, 2008 WL 4531707 (Tex.App.—Fort Wor th Oct. 9, 2008, pet. dism’d) (unpublished). The Stat e’s brief makes to attempt to address these cases. 2 The State’s reliance on Evans v. State is inapposite. The controlled substance at issue in Evans (cocaine) was all found in one place – not in multiple locations: Immediately in front of appellant—within one foot o f his arm—was a coffee table with numerous baggies of cocaine and p ill bottles, also containing cocaine.

2 Other instructive cases include State v. McClain, 968 S.W.2d 225, 226-227 (Mo. Ct. App. 1998) (finding that the defendant's possession of methamp hetamine was insufficient evidence to connect him to bag containing items consistent with “meth l ab equipment” that was found in a garage closet, despite the fact the defendant was at the g arage and he told the police that he saw another person bring the bag into the garage and where the bag was located) and State v. Moiser, 738 S.W.2d 549, 558–59 (Mo. Ct. App. 1987) (holding tha t despite the fact there was sufficient evidence to prove defendant possessed psilocybin mu shrooms located in a box in the dining room, the state provided insufficient evidence that the d efendant possessed marijuana located in various other locations in the house).7

Evans, 202 S.W.3d at 160. The State’s failure to recognize the need to consi der the location of each of the items of methamphetamine on its own merits is e videnced by the fact that the State continues to treat all five items of methamph etamine as a single unit: When all the evidence, direct and circumstantial, i s considered in the light most favorable to the verdict, the combined l ogical force of that evidence is sufficient for a rational jury to concl ude beyond a reasonable doubt that the Appellant possessed the methamphetamine with the intent to deliver as charged in the indict ment either individually, or as a party, or both. State’s Brief, pg. 10. While in this case it is reasonable that the quantity alone is sufficient to support a finding of intent to deliver, other circu mstances include the presence of the material used to dilute or increase the weight of methamphetamine that is sold. The only logical inf erence from that is that the accompanying methamphetamine was intended for delivery as no mere user would dilute or increase the weight of his drug. State’s Brief, pg. 19. The Appellant and Tiffany Pierce were together in t he van with a very large and valuable quantity of methamphetamine and the items used to process it for sale. They both had methamphetamine on their person. Clearly, . . . a rational jury could have found fro m the evidence and rational inferences based upon that evidence, beyon d a reasonable doubt that the Appellant possessed the methamphetamine with intent to deliver either by his own conduct, [or] as a party with Tiffany Pierce[.] State’s Brief, pg. 23.

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3. The State appears to cite Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) for the proposition that the reasonableness of infe rences made by jurors in support of the verdict is a question of fact , and therefore “cannot be erroneous: Courts reviewing all evidence in the light most fav orable to the verdict must assume that jurors made all inferences in favo r of their verdict so long as reasonable minds could disregard all other inferences. Where the parties may disagree about the logical inferenc es from undisputed facts, the choice made by the fact finder cannot be erroneous. State’s Brief, pg. 13.

Appellant’s reply The State cites Evans for a proposition for which it does not stand. The issue of whether or not an inference is reasonable is a question of law. H & R Block E. Enterprises, Inc. v. Swenson , 2008 WI App 3, 307 Wis. 2d 390, 398-99, 745 N.W.2 d 421, 425. What Evans says is that if there are multiple logical inferences that can be made from undisputed facts, and those inferences are in conflict, a jury can properly choose between the reasonable inferences:
Although the parties may disagree about the logical inferences that flow from undisputed facts, “[w]here there are two permi ssible views of the evidence, the fact finder’s choice between them can not be clearly erroneous.”
Evans, 202 S.W.3d at 162-63. It is not up to the jury to decide whether an inference is reasonable. That is a job for the Court. See Peters v. Texas Dept. of Pub. Safety,9

404 S.W.3d 1, 6 (Tex.App.—Houston [1st Dist.] 2013, no pet.) (“Although it is certainly true that a fact-finder can draw reasonab le inferences from the record, the types of inferences that DPS argues are not ‘infere nces’ at all – just mere speculation and conjecture.”); Grant v. State, 989 S.W.2d 428, 434 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (“[I]t is not a reasonable in ference that another person placed a large and valuable amount of marijuana in appellant ’s car. Such an alternative explanation for the presence of the marijuana is in credible.”); United States v. Townsend, 474 F.2d 209, 213 (5th Cir. 1973) (“A jury may draw the reasonable inferences which the evidence warrants.”).

(i) Rules for determining whether an inference is r easonable “It is often necessary for the trier of fact to de termine the existence of an
element of the crime – that is an ‘ultimate’ or ‘el emental’ fact – from the existence of one of more ‘evidentiary’ or ‘basic’ facts.” County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 156 (1979). To do so is to make an i nference. Id. However, for an inference to be reasonable there must be a r ational connection between the facts proved and the fact inferred. See Tot v. United States, 319 U.S. 463, 467 (1943). “A reasonable inference within the purview of the l aw must have a chain of factual evidentiary antecedents. If an alleged inference d oes not have a chain of factual antecedents, then within the purview of the law it is not a reasonable inference but10

is instead mere speculation.” People v. Davis, 663 N.E.2d 39, 44 (Ill. App. Ct. 1996) “[W]ithout a single factual evidentiary antecedent to support it the State’s alleged inference that Davis had the opportunity to commit the homicide cannot bear water.” Id. at 45. As Walker noted in his principal brief:
“In the law of evidence, an inference . . . is a lo gical consequence flowing from a proven fact.” Brewer v. State, 126 S.W.3d 295, 297 Tex.App.— Beaumont 2004, pet. ref’d). “Logic” is “the apparently unavoidable cause and effect relationship of events leading to a particul ar conclusion.” New Webster’s Dictionary of the English Language 562 (1 971). “Logical relevancy” is defined thusly: Existence of such a relationship in logic between t he fact of which evidence is offered and a fact in issue that the ex istence of the former renders probable or improbable the existence of the latter. Black's Law Dictionary 942 (6th ed. 1990). (Appellant’s Brief, pg. 15). Examples: Mahaffey v. State , 364 S.W.3d 908, 913 (Tex. Crim. App. 2012) (“Here, the record reveals that the highway on which appellant was driving was comprised of ‘clearly mar ked lanes for vehicular travel’ and, therefore, was a ‘laned roadway’ as described in the definitions statute. . . . It logically follows that once the clear markings on t hat highway terminated, so, too, did the corresponding ‘lane.’”); Marquez v. State, 921 S.W.2d 217, 224 (Tex. Crim. App. 1996) (Because a defendant has a right to a ju ry trial, it logically follows that he has the right to waive his right to a jury trial ); Franco v. State , 82 S.W.3d 425, 428 (Tex. App.—Austin 2002, pet. ref'd) (“If Franco was willing to take a breath11

test after being told that he would lose his driver 's license for ninety days if he refused, it logically follows that he would have be en willing to take the test if he had also been told that a refusal would result in the a dditional loss of his commercial license for one year.”); Fisher v. State, 121 S.W.3d 38, 40-41 (Tex.App.—San Antonio 2003, pet. ref’d) (Given that it is imprope r for an expert witness to offer a direct opinion as to the truthfulness of another wi tness, “it logically follows that a lay witness is not permitted to offer an opinion th at another witness is truthful.”); Nguyen v. State, 222 S.W.3d 537, 541 (Tex. App.—Houston [14th Dist. ] 2007, pet. ref'd) (“If the defendant can waive his right to ob ject that no PSI was prepared, it logically follows that a defendant can waive the ri ght to complain about a part of the PSI being left out.”).

(ii) Instructive cases – inference of possession wa s not reasonable
In United States v. Townsend, 474 F.2d 209 (5th Cir. 1973), wherein the defendant was convicted of theft of equipment from a military reservation (the federal offense charged required proof that the the ft actually took place on a military reservation), the question addressed was “whether p ossession of the property off the military base can give rise to the inference that t he property was received or
concealed on the base.” Id. at 211. Under the evidence adduced, the Fifth Ci rcuit answered the question in the negative:12

There is an important difference between the infere nce from possession to theft and the inference from possession outside the jurisdiction of the United States to possession inside the jurisdiction of the United States. It comes down, not to a question of law as such, bu t to a question of geography. The difference is simply this, if posses sion would, as we have held, support the inference of theft it must s upport the inference of the location of the theft, because this theft co uld occur at only one single location. That is, the theft had to occur at the Officers' Club. On the other hand, the receiving and concealing of the stolen property could have occurred for the first time at any numbe r of locations which were not within the special jurisdiction of the Uni ted States. In fact, the only evidence on the question first places Appellan t in possession of the stolen equipment at Lubbock, Texas-ten miles from t he scene of the crime. (emphasis added) Id. at 214. The Fifth Circuit went on to contrast this set of facts from the facts in Young v. Wainwright, 439 F.2d 426 (5th Cir. 1972) wherein an inference o f breaking and entering was reasonable based on possession of stolen property:
[P]ossession of recently stolen property would supp ort an inference of breaking and entering with intent to steal [where t he] crime . . . could occur only in a single location, i. e., the locatio n where the property was stolen during a burglary

. Townsend, 474 F.2d at 214.
In State v. McClain, 968 S.W.2d 225 (Mo. Ct. App. 1998), wherein the appellant was convicted of attempted to manufacture methamphetamine, the relevant facts were as follows. Appellant was detained in t he service area of an auto repair garage. In the closet of the garage office, a blue bag containing items “consistent with meth lab equipment” were found. Appellant was searched and found to be in possession of a pouch containing powder that tested positive for methamphetamine.13

When questioned, Appellant stated that the blue bag had been behind the garage when he got there and another individual brought it inside. Id. at 226. The State argued on appeal that the pouch with powder found o n Appellant’s person “indicates that Appellant had a familiarity with methamphetami ne.” The Court of Appeals disagreed: Although Appellant told [the officer] that the blue bag was behind he garage when “they” got there, nothing in the eviden ce indicates the bag was then unzipped. However, even if it was, there is no evidence that Appellant was close enough to the bag to see what w as in it. Furthermore, even if he saw the contents, and even if he recognized them as items used to manufacture methamphetamine, such knowledge alone does not support a finding that Appellant had possession of the items. Id. at 227.
In State v. Guinn, 242 S.W.3d 479 (Mo. Ct. App. 2008), the evidence sh owed only that the defendant had walked out of a room in which there was methamphetamine on a scale. Id. at 483. The Missouri Court of Appeals held that it was not reasonable to infer that because he was walking out of the otherwise unoccupied room, he had been the person measuring t he methamphetamine: “[T]he mere possibility that Guinn saw the methamphetamine on the scale and was the closest person to it when he was arrested” did not create a reasonable inference that he possessed it. Id. at 484.

(iii) Instructive cases – inference of possession w as reasonable14

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006): The State argues that the single most important lin k or connection between appellant and the fourteen grams of cocaine rocks is the simple fact that he was sitting directly in front of them. They were within arm's reach; the coffee table was less than a foot away. This evidence constitutes two extremely strong “presence” and “pr oximity” links. Appellant was not merely present in a house with dr ugs cached away somewhere, they were right under his nose. The drugs were in plain view —a third link. He was alone in the house —a fourth link. He immediately admitted that he knew why the police ha d walked in the door— “Drugs.” That is a fifth link. He received mail at 923 Lombr ano, thus raising a reasonable inference that he lived there , which, in turn, raises a reasonable inference that he had actual ca re, custody, and control of items found in plain view on the coffee table. This is a sixth link. He had $160 in twenties in his pocket , but he was apparently unemployed. This is a seventh, albeit weak, link. T he State argues that the sum total of this circumstantial evidence is su fficient to support a rational jury's finding, beyond a reasonable doubt, that appellant exercised actual care, custody, control, or managem ent of the fourteen grams of cocaine on the coffee table. We agree. (e mphasis added) Id. at 163.

In Grant v. State , 989 S.W.2d 428 (Tex. App.—Houston [14th Dist.] 19 99, no pet.), the Fourteenth Court held that the jury coul d reasonably infer possession: [A]ppellant was the sole occupant and driver of the car; appellant had been driving the car for a couple of days as part o f his job; the marijuana was under the driver's seat, and thus clo se to appellant; appellant had the only set of keys to the car; the closed bag containing the marijuana could be readily seen by anyone openi ng the rear passenger door and looking inside the car; the mari juana was wrapped securely enough that its odor did not spread throug hout the car; and the drugs were not in a secret compartment of the car.15

Id. at 434; see also Evans v. State, 98 So. 440, 442 (Miss. 1924) (two buckets of whiskey, along with mash, found at recently operate d still, and defendant coming and going therefrom allowed for reasonable inferenc e that defendant manufactured or assisted in the manufacture of the two buckets o f whiskey).

(iv) The State’s inferences are not reasonable
The State says that all that can be inferred about Pierce’s relationship to the van is that she was driving the van:
Ms. Pierce, who had no relationship to the van belo nging to the Appellant’s girlfriend but was driving the van occu pied by the Appellant[.] State’s Brief, pg. 23 . The State is ignoring the additional facts that the van was full of women’s clothes (no mention of men’s clothes) an d it “[a]ppeared like somebody might have been living in the vehicle.” 4 RR 49, 6 0, 68, 71. The large items of methamphetamine were found in a bag containing wome n’s clothing (“bag behind the driver’s seat” – 40.58 grams) and inside a laun dry bag wrapped in a pair of women’s pants (“frisbee methamphetamine” – 56.92 gr ams). 4 RR 51-52, 58-60, 88, 103. These facts would allow an inference of m ore than that Pierce was simply driving the van. They would also allow the reasona ble inferences that she had been16

living out of the van and that she had cached the l arge quantities of methamphetamine. The State argues that because there was evidence t hat the van belonged to Walker’s girlfriend or wife, he therefore had the s ole right to control the van. Appellant told both the arresting officer and the d etective that the van belonged to his girlfriend or wife. He stated that Ms. Pierce was not the person in question and that the other two peopl e in the van were recently arrived passengers. The jury could reason ably find from that Appellant had the right to control that van. . . . Someone had control over it or the right to control it. State’s Brief, pg. 16. No one else in the van had any right to control the van except the Appellant. State’s Brief, pg. 22. But does the “chain of factual evidentiary anteced ents” allow one to reasonably infer this? When Walker was aske d to consent to a search of the van, he said the van didn’t belong to him and thus he couldn’t give permission for a search. 4 RR 25-26. As noted above, it appeared t hat a woman had been living out of the van. And a woman was driving the van. Whil e it cannot reasonably be inferred that Pierce owned the van, it can certainl y be inferred that she did exercise some control over the van. Even if some control of the van by Walker can be inferred, he was not the only person who had contro l. However, the “ultimate” “elemental” facts that State had to prove were poss ession of methamphetamine with intent to distribute – not control of the vehicle. As noted above, given that the large17

quantities of methamphetamine were cached with wome n’s clothing allows for the reasonable inference that Pierce possessed them – n ot Walker. Unlike the defendant
in Grant , who had been driving the vehicle as the sole occu pant for two days, there is no “factual evidentiary antecedent” in this case establishing (1) that Walker had been in the van for more than a short period of tim e, or (2) that he had ever been in the van as the sole occupant. The State cites Luke v. State, No. 14-99-01358, 2001 WL 82934 (Tex.App.— Houston [14th Dist.] 2001, no pet.) (unpublished) i n support of its argument that Walker’s “close relationship” with the van’s owner somehow “linked” him to the methamphetamine found therein. State’s Brief, pg. 16. The State fails to point out the other “chain of factual evidentiary antecedents ” present in Luke (wherein the defendant was essentially caught with a small bag o f cocaine in his hand): Luke argues that his mere proximity to the crack co caine is the only evidence linking him to the possession of it, and t hat such evidence is legally and factually insufficient to support this conviction. Luke, however, overlooks the fact that mere proximity is not the only evidence linking him to the possession of the subst ance. In fact, Luke exercised sole possession over the vehicle where th e crack cocaine was found until just minutes before the traffic stop, not to mention the fact that he is “closely related” to the owner of the ve hicle. At the time of the traffic stop, Luke sat in the passenger side of the vehicle, which is where Officer Johnson found the 5.5 gram crack coca ine cookie. Moreover, once the officers pulled over the vehicle , Johnson observed Luke making a furtive gesture in an apparent attemp t to hide the crack cocaine. Johnson found the crack cocaine in the veh icle partly because of this furtive gesture and partly because when he looked in the car he saw a bit of a plastic bag and a corner of the cook ie. (emphasis added)18

Luke, 2001 WL 82934, at *3. The State also suggests that it is reasonable to i nfer that no mere user would be in possession of material (MSM) used to increase the weight of the methamphetamine: While in this case it is reasonable that the quanti ty alone is sufficient to support a finding of intent to deliver, other circu mstances include the presence of the material used to dilute or increase the weight of methamphetamine that is sold. The only logical inference from that is that the accompanying methamphetamine was intended for delivery as no mere user would dilute or increase the weight of his drug. State’s Brief, pg. 19. The State’s inference, as a general proposition, is certainly reasonable. But it begs the question – who possesse d the MSM? Just as the defendant in McLain, there is no evidence that Walker ever saw the MSM, let alone possessed it. For the reasons set forth above, the reasonable inference is that Pierce possessed the MSM – not Walker. That State also makes the gigantic (and unwarrante d) leap of inferring that because Walker had a user amount of methamphetamine on his person, he was therefore also in possession of the large amounts f ound in the van:
The Appellant and Tiffany Pierce were together in the van with a very large and valuable quantity of methamphetamine and the items used to process it for sale. They both had methamphetamine on their person. State’s Brief, pg. 23. Walker would ask this court to note United States v. Longoria, 569 F.2d 422 (5th Cir. 1978), summarized in Appella nt’s principal brief at pages 32-19

33, wherein the Fifth Circuit reversed appellant’s conviction, holding inter alia, that the fact that appellant had traces of marijuana in her pocket book did not establish knowledge of or an intent to distribute the 176 pou nds of marijuana found in suitcases located in the trunk of the vehicle.
Respectfully submitted, /s/ John A. Kuchera John A. Kuchera 210 N. 6th St. Waco, Texas 76701 (254) 754-3075 (254) 756-2193 (facsimile)

SBN 00792137 johnkuchera@210law.com Attorney for Appellant

Certificate of Service This is to certify that a true and correct copy of the above and foregoing Appellant’s Reply Brief has this day been mailed to the office of Mr. Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513. SIGNED this 13th day of February, 2015.

/s/ John A. Kuchera John A. Kuchera, Attorney for Shawn Michael Walker20 Certificate of Compliance with Rule 9.4 1. This brief complies with the type-volume limita tion of Tex. R. App. P. 9.4(i) because the brief contains 4,717 words, excluding t he parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).
2. This brief complies with the typeface requiremen ts of Tex. R. App. P. 9.4(e) and the type style requirements of Tex. R. App. P. 9.4 (e) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times New Roman, size 14 font.

/s/ John A. Kuchera John A. Kuchera, Attorney for Shawn Michael Walker
Dated: February 13, 2015