### NO. 03-15-00232-CR IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

ALICIA NICOLE PEREZ, Appellant VS.

THE STATE OF TEXAS,Appellec

APPELLANT’S BRIEF

SUSAN SCHOON ORAL ARGUMENT Schoon Law Firm, 

### P.C. NOT REQUESTED 200 N. Seguin Avenue New Braunfels, Texas 78130 PH: (830) 627-0044 FAX: (830) 620-5657 susan@schoonlawflrm.com State Bar No. 24046803 AttorneyforAppellant ACCEPTED 03-15-00232-CR 7803373 THIRD COURT OF APPEALS

AUSTIN, TEXAS 11/12/2015 2:52:54 PM JEFFREY D. KYLE

CLERK

### IDENTITY OF PARTIES AND 

### COUNSEL

Appellant: Alicia Nicole Perez AttorneyforAppellant: Susan Schoon (on appeal) AttorneyforAppellant: Veronica Legaretta (attrial) AttorneyforState: Daniel Palmitier, Assistant DistrictAttorney

Trial Court: Honorable Bruce Boyer Judge 207th Judicial District

### TABLE OF CONTENTS

IDENTITY OF PARTIES i 1NIJEX OFAUTHORITIES iii STATEMENT OF THE CASE 1 STATEMENT OF FACTS 2 SUMMARY OF ARGUMENT 4 PROFESSIONAL EVALUATION OF THE RECORD 8 PRE-TRIAL OBJECTIONS 5 VOIR DIRE 5 TRIAL OBJECTIONS 6 PROCEDURALTRIAL OBJECTIONS 10 JURY CHARGE 11 Narrowing Party Liability 11 Joint Possession 12 Objectionto the Law ofParties Instruction 17 SUFFICIENCY OF THE EVIDENCE 18 CONCLUSION 18 PRAYER 18 CERTIFICATE OF COMPLIANCE 19 CERTIFICATE OF SERVICE 19

11.

### INDEX OF AUTHORITIES

CASES PAGES Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Gr.App. 1994) 12 Alrnanza v. State, 686 S.W.3d 157 (Tex.Crim.App. 1985) 14 Anders v. Caflfornia, 

### 386 U.S. 738 (1967) 4 Arline v. State, 721 S.W.2d 348 (Tex. Grim. App. 1986) 14 Barron v. State, 353 S.W.3d 879 (Tex. Grim. App. 2011) 14 Bloys v. State, 2005 Tex. App. LEXIS 7188 (Tex. App. Austin Aug. 31, 2005) 7 Brown v. State, 122 S.W.3d 794 (Tex. Grim. App. 2003) 14 Celis v. State, 416 S.W.3d 419 (Tex. Grim. App. 2013) 13 Cude v. State, 716 S.W.2d46 (Tex. Grim. App. 1986) 14 Dinkins v. State, 894 S.W.2d 330 (Tex. Grim. App. 1995) 12 Evans v. State, 202 S.W.3d 158 (Tex. Grim. App. 2006) 10 Flores v. State, 440 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2013) 13

111.Gainous v. State,

436 S.W.2d 137 (Tex.Crim.App. 1969) 4 Gordon v. State, No. 02-11-00413-CR, 2012 Tex. App. LEXIS 7993 (Tex. App.—Fort Worth Sept. 20, 2012, no. pet.) 14 Grjffln v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981) 

### 18 Guzinan v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) 7 Hawkins v. State, 656 S.W.2d 70 (Tex. Crim. App. 1983) 13 Jacobs v. State, 787 S.W.2d 397 (Tex. Crim. App. 1990) 5 Jackson v. Virginia, 

### 443 U.S. 307 (1979) 18 Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) 13 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) 8, 9 Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) 11 Ross v. State, 2013 Tex. App. LEXIS 44 (Tex. App. Fort Worth Jan. 4, 2013) 14 Russell v. State, 749 S.W.2d 77 (Tex. Crim. App. 1988) 12, 13 Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991) 18

iv.State v. Mechier,

153 S.W.3d 435 (Tex. Crim. App. 2005) 8 Stull v. State, 772 S.W.2d 449 (Tex. Crim. App. 1989) 7 Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) 11 Whaleyv. State, 717 S.W.2d 26 (Tex. Crim. App. 1986) 13

STATUTES ANI~ RULES TEX.CODECRIM.PROArt. 14.01 7 TEX.CODE CRTM.PROArt. 36.14 12 TEx.R.Eviix4O3 8,9 TEX.PENALCODEAnrL Art. 6.01(b) 13

V.TO THE HONORABLE JUSTICES OF TUE COURT OF APPEALS:

COMES NOWALICIA PEREZ, Appellant in this cause, by and through her attorney ofrecord, Susan Schoon, and pursuant to the provisions of TEx.R.APP.PR0. 38, et seq., files this briefon appeal. STATEMENT OF TUE CASE Alicia Perez, Appellant was indicted in Cause Number CR2012-603 for possession ofa controlled substance. (CR 25)1 Thejury found Appellant guilty, and the trial court assessed punishment at fouryears in the Texas Department ofCorrections/Institutional Division. That sentence was suspended, and Appellant was placed on probation forfouryears. (CR 104) Notice ofAppeal was filed on April 17, 2015 (CR 95) The clerk’s record

was filed on 6/12/15 andthe reporter’s record was filed on 7/17/15. Three motions for extensionto file briefwere granted bythis court, with a final one submitted with this briefon this the l2t~~ day ofNovember, 2015.

1 CR refers to Clerk’s Record; RR refersto Reporter’s Record.

1STATEMENT OF FACTS

At approximately 4:00 A.M. on June 25, 2012, Officer Chris Scott made a traffic stop on avehicle in which Appellant was afront-seat passenger. (RR, Vol. 3, p. 28) As he was driving behind the car, he noticed “a lot ofmovement” from the front seat occupants. (RR, Vol. 3, p. 26) Afterthe car stopped and the officer approached, he noticed athird personwas “passed out” in the back seat. (RR, Vol. 3, pp. 27-28) The driverdid not have a driver’s license, and as Officer Scottwas speaking with her, he saw a pipe sticking out ofthe area between the seat and the console. (RR, Vol. 3, p. 29) After calling forback-up, both the driver and Appellantwere told to get out ofthe car. (RR, Vol. 3, p. 33, 35) The driverwas searched, and found to be in possession ofa bag ofwhatwas suspected to be methamphetamine. (RR, Vol. 3, p. 34) Appellantwas detained and handcuffed while the officers woke up the back-seat passenger and got him out ofthe car. (RR, Vol. 3, pp. 35, 38) The officer immediately noticed a black magnetic box, typically used for hiding keys, sticking out ofhis front pocket. (RR, Vol. 3, p. 98; St.Ex. 2D) The box contained methamphetamine. (RR, Vol. 3, p. 40) Appellant spoke up and told the officerthat the box belonged to her. (RR, Vol. 3, p. 41-43) When asked, she said that it contained methamphetamine. (RR, Vol. 3, pp. 41, 43, 54-55, 99; St.Ex.3) Syringes, butane lighters and “q-tips,” whichthe officertestified were typically used for administering drugs, were found within Appellant’s purse. (RR,2Vol 

### 3, Pp. 

### 79, 100, 110, 190) A zippered, pink pouch containing a spoon with

“residue” and burn marks was found in the car. (RR, Vol. 3, p. 80) All three occupants ofthe vehicle were arrested forpossession ofa controlled substance. At trial, the occupant ofthe back seat, Darwin Heidemeyertestified that he did not know how the black box got into his pocket. (RR, Vol. 3, P. 188) Appellant testified that she did not put it into his pocket, but claimed itto keep him from getting into trouble. (RR, Vol. 4, pp. 

### 75-76) Attrial, Appellant admitted that she knew there were drugs in the car, and admitted having planned to use them. (RR, Vol. 4, p. 101)

3SUMMARY OF ARGUMENT

Professional Evaluation ofthe Record Counsel has reviewed the appellate record in this cause and reluctantly concludes that as a matter ofprofessionaljudgment, the record contains no reversible errorand nojurisdictional defects. Where counsel concludes that there

are no arguable grounds for reversal, she is required to present a professional evaluation ofthe record demonstrating why there are no arguable grounds to be advanced. Anders v. Caflfornia, 

### 386 U.s. 738 (1967); Gainous v. State, 436 5.W.2d 137 (Tex.Crim.App. 1969).

4PRE-TRIAL OBJECTIONS

There were no pre-trial motions heard, otherthan a motion in limine filed by Appellant regarding extraneous offenses, which the trial court granted. (RR, Vol. 2, p. 215) A motion to suppress evidence was carried with the trial. It is discussed in the “Trial Objections” section ofthis brief. VOIR DIRE Appellant had no objection to the state’s challenge forcause ofone venireperson. All ofAppellant’s challenges for cause were granted, except one. (RR, Vol. 2, p. 199) However, even ifthis were error, itwas not preserved because Appellant did not request additional peremptory strikes, or identifS’ an objectionablejurorthatwas seated on the panel. SeeJacobs v. State, 787 S.W.2d 397 (Tex. Crim. App. 1990). Appellant made two separate objections during the state’s voir dire. (RR, Vol. 2, pp. 68, 95). The parties approached the bench; however, when asked bythe court reporterwhetherthe discussion needed to be on the record, both times defense counsel responded that it did not. When the state objected to a question asked by defense counsel during voir dire, again no record was made ofthe discussion or ruling. (RR, Vol. 2, p. 132). Therefore, nothing was preserved for appeal.

5TRIAL OBJECTIONS

Motion to Suppress Evidence Appellant moved to suppress all evidence stemming from her arrest due to lack ofprobable cause forthe arrest. The trial court held a hearingto considerthe motion duringthe trial, after Officer Scott had testified. (RR, Vol. 3, p. 171) After hearing evidence, the trial court denied the motion to suppress. (RR, Vol. 3, p. 176) Appellant’s argument was that atthe pointthat she was placed under arrest, Officer Scott had not linked herto the box ofmethamphetamine found hanging out of Darwin Heidemeyer’s pocket. (RR, Vol. 3, p. 176) Herargumentwas that only after Officer Scott placed Appellant under arrest did he question herabout which box she had been referring to when she had claimed that it was hers. The state argued, and the trial court agreed that Appellant had claimed the box containing methamphetamine while detained and handcuffed, but priorto being placed under arrest, giving Officer Scottthe necessary probable cause. Further, they argued that Officer Scoff knew which box she was referring to, and what it contained because he had already opened it and recognized the methamphetamine. (RR, Vol. 3, p. 40-41) After he placed the box onthe back ofthe car, Appellantvolunteered that it

was hers, and he then read herthe Miranda warning. (RR, Vol. 3, p. 41-43) His continued questioning after he placed her under arrest and gave her Miranda warnings simply served to further his investigation. (RR, Vol. 3, pp. 173-176) 6Apeace officer may arrest an offenderwithout awarrant for any offense

committed in 

### his presence. TEx. CODE CRIM. PROC. Ann. Art. 14.01. The test forprobable cause for awarrantless arrest is: “Whetheratthat moment the facts and circumstances within the officer’s knowledge and ofwhich [he] had reasonablytrustworthy information were sufficientto warrant a prudent man in believing the arrested person had committed orwas committing an offense.” Guzinan v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) citing Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989). In Bloys v. State, the defendant admitted to the officerthat he was unlawfully carrying aweapon in his car. This Court held that “appellant’s admission that he was carrying a handgun in his vehicle was sufficientto give probable cause forhis arrest.

. .“ 2005 Tex. App. LEXIS 7188, 2005 WL2094740 (Tex. App. Austin Aug. 31, 2005)(not designated forpublication). Here, Officer Scott had seen what he believed to be methamphetamine, and Appellant volunteered that it was hers. Similarto Bloys, Appellant’s admission would provide the necessary probable cause for her arrest. Objection to State’s Exhibits 7 and 8 Defendant objected to the admission ofState’s Exhibits 7 (a pinkzippered pouch) and 8 (a spoon found within the pouch), arguing that because the items could not be linked to her, their admission was prejudicial and irrelevant. (RR, Vol. 73, pp. 106-108) The trial courttreated this as an objection under Rule 403 ofthe

Texas Rules ofEvidence, stating forthe record, “the question is ifit’s prejudicial to the pointwhere it outweighs its probativevalue.” (RR, Vol. 3, p. 108) Additionally, defendant objected that State’s Exhibit 7 contained hearsay because ofthe initials “CL” onthe pink bag. The court overruled both objections and instructed thejuryto disregard anywriting on State’s Exhibit 7. Atrial court is entitled to broad discretion in ruling on a Rule 403 objection. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Quoting Montgomery v. State, the Court referred to two significant rationales for affording the trial courtthis broad discretion: “First, Rule 403’s language implies that a determination underthis rule is inherently discretionarywith the trial court. Rule 403 provides, in pertinent part, that relevant evidence ‘maybe excluded ifits probative value is substantially outweighed bythe dangerofunfairprejudice.’ TEX. Rui~E EvID. 403. The inclusion ofthe word ‘may’ displays the drafter’s intent to vestthe trial courts with substantial discretion. Second, the trial court is in a superiorposition to evaluate the impact ofthe evidence. Unlike the trial court, an appellate court ‘cannot weigh on appeal

... the intonation and demeanor ofthe witnesses precedingthe testimony in issue

... nor can we determine the emotional reaction ofthejuryto otherpieces ofevidence

. . ..“ Id. at 439 quoting Montgomery

v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).An analysis under Rule 403 includes at least four factors: (1) the

probativevalue ofthe evidence; (2) the potential to impress thejury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need forthe evidence. Montgomery at 389-90. While the trial court in this case did not specifically mention these factors, it is clearthat his ruling admittingthe evidence was not an abuse ofdiscretion and would not be disturbed

on appeal. The probative value ofthe evidence was in whatthe items contained and forwhattheywere used. Both Officer Kuhl and Darwin Heidemeyertestified thattheywere used for injecting drugs. (RR, Vol. 3, pp. 190-91) Theywere found in the car in which appellant was a passenger, nextto the console onthe driver’s side, but in appellant’s reach. (RR, Vol. 3, p. 80) The probative value was in connecting Appellant and the others in the carto drug use. This factorwould weigh in favorofadmission. There was no clear danger ofimpressing thejury in

an irrational manner, sincethejurywas provided an explanation fortheirprobative value, and told where the items were found in the vehicle. This factorwould weigh in favor ofadmission, as would the third factor—the time to develop the evidence was minimal. The final factor—the proponent’s need forthe evidence would likely favor admission, as well. Appellantvolunteered atthe scene thatthe drugs found in Darwin Heidemeyer’s pocketwere hers. However, at trial, she argued that she had lied to protect Darwin, and thatthe drugs were really his. (RR,Vol. 4, pp. 75-76) Therefore, anyadditional evidence ofthugs or drug

paraphernalia, especially in the vicinity ofAppellant would be necessaryto link herto the contraband. “Mere presence at the location where drugs are found is thus insufficient, by itself; to establish actual care, custody, or control ofthose drugs. However, presence orproximity, when combined with otherevidence, either direct or circumstantial (e.g.,” links”), maywell be sufficient to establish that element beyond a reasonable doubt. It is, as the court ofappeals correctly noted, notthe numberoflinks that is dispositive, but ratherthe logical force ofall ofthe evidence, direct and circumstantial. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) Therefore, in light ofthese factors, itwould be unlikelythatthe trial court’s ruling admittingthe evidence would be deemed an abuse ofdiscretion.

PROCEDURAL TRIAL OBJECTIONS Appellant made several procedural objections throughoutthe trial, none of which rose to the level oferrorand/orharm. Theywere as follows: 1) “Hearsay” and “mischaracterization ofevidence during state’s opening;” (RR, Vol. 3, p. 11- 14) 2) “Asked and answered;” (RR, Vol. 3, p. 36) 3) “Nonresponsive;” (RR, Vol. 3, p. 37-38) 4) “Nonresponsive;” (RR, Vol. 3, p. 137) and 5) “Relevance.” (RR, Vol. 3, p. 138)

10JURY CHARGE

Appellant had a number ofobjections to thejury charge, two ofwhich constituted error, but caimot be shown to have resulted in harm. In reviewing ajury charge, the court must first determine iferror occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Iferror is found, the Court then determines whether sufficient harm resulted from the errorto require reversal. See Ngo, 175 S.W.3d at 743. NARROWING PARTY LIABILITY First, Appellant made a request thatthe application paragraph ofthejury charge narrow the party liability acts to onlythose shown bythe evidence. This requestwas denied, and this was error. (RR, Vol. 4, p. 55-56, 60-61). In Vasquez v. State, the Court ofCriminal Appeals was clear: In sum, a general reference to the law ofparties in the application paragraph is sufficient and is not errorwhen the defendant does not object and request a narrowing ofthe specific statutory modes of conduct that constitute party liability—whetherhe “solicited, encouraged, directed, aided or attempted to aid” another specified personto commit the offense. But ifthe defendant does requestthat the application paragraph refer onlyto those specific party-liability acts that are supported bythe evidence, then he is entitled to such a narrowing. The failure to narrow the specific modes ofparty-liability conduct when properly requested is reversible error ifthe defendant has suffered actual harm to his rights.

389 S.W.3d 361, 368-69 (Tex. Crim. App. 2012)

11JOINT POSSESSION

Second, Appellant objected to the following paragraphs in the abstract portion ofthejury charge regarding possession: “Possession is avoluntary act if the possessor knowingly obtains or received the thing possessed oris aware ofhis control ofathing for a sufficienttime to allow him to terminate his control,” and “Possession ofcontraband need not be exclusive to support a conviction ofthe unlawfUl possession ofa controlled substance; evidence showing an accused jointlypossessed contraband with another is sufficient.” Her objection to these two paragraphs were that theywere “improper as to theircomment on the weight ofthe evidence.” (RR, Vol. 4, p. 6-7; CR 84-85) The objections were overruled. The trial court must charge thejury on the “law applicableto the case,” which requires that thejurybe instructed on each element ofthe offense charged. See TEX. CODE CRIM. PROC. art. 36.14; Abdnorv. State, 871 S.W.2d 726, 731 (Tex.Cr.App. 1994); Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). By statute, the trial court must deliverto thejury awritten charge “not expressing any opinion as to the weight ofthe evidence, not summing up the testimony [or] discussing the facts.” TEx. CODE Clutvf. PROC. art. 36.14 The Court ofCriminal Appeals, citing Black’s Law Dictionary, defines a comment upon the evidence as meaningthatthe “trialjudge is prohibited from conveying to [the]jury [the] trialjudge’s personal opinion as to the truth orfalsityofany evidence.

. .“ Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988).

A charge that assumes the truth ofa controverted fact issue comments on the weight ofthe evidence. Whaleyv. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). An instruction is a comment on the weight ofthe evidence ifit singles out a particular fact and instructs thejury it may considerthat fact in determining an issue in the case. Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983). More specifically, the Court ofCriminal appeals has held that ifajury instruction ordefinition originates from the penal code, it is “generallypermitted because it is the applicable statute and, therefore, the ‘applicable law,’ as required byArticle 36.14.” Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013), citing Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). “By contrast, it is generally impermissible to instruct on terms not statutorily defined, and the trial court instead must permitthejuryto construe them according to the rules of grammar and common usage.” Id; Flores v. State, 440 S.W.3d 180, 195 (Tex. App.—Houston [14th Dist.] 2013)(overruled on othergrounds). Here, we have one ofeach. The first paragraph is taken out ofthe Penal Code: “Possession is avoluntary act ifthe possessor knowingly obtains or receives the thing possessed or is aware ofhis control ofthe thing for a sufficient time to permit him to terminate his control.” TEx. PENAL CODE Ann. Art. 6.01(b). The second paragraph, “Possession ofcontraband need not be exclusive to supporta conviction ofthe unlawfiil possession ofa controlled substance; evidence

showing an accusedjointlypossessed contraband with another is sufficient” is not derived from any statute. Instead, it is a rule forassessing the sufficiencyofthe evidence. Ross v. State, 2013 Tex. App. LEXIS 44, 2013 WL43992 (Tex. App. Fort Worth Jan. 4, 201 3)(not designated forpublication) citing Gordon v. State, No. 02-11-00413-CR, 2012 Tex. App. LEXIS 7993, 2012 WL4121 147, *2n.14 (Tex. App.—Fort Worth Sept. 20, 2012, no. pet. h.) (mem. op., not designated for publication) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986), for the propositionthat proofofjoint possession is sufficient to prove possession). “Texas courts are forbidden from instructing thejury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.” Ross at *14, quoting Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003). Thus, the trial court erred by including the “joint possession” definition in thejury charge. HARM Because Appellant objected, she is entitled to a new trial ifthe errors are not harmless, but “calculated to injure the rights ofthe defendant.” Ahnanza v. State, 686 S.W.3d 157, 171 (Tex.Crim.App. 1985); Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011)(quotingArline v. State,721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[TIhe presence ofany harm, regardless ofdegree, which results from preserved charging error, is sufficient to require a reversal ofthe conviction.”)). 14In reviewing for harm, the appellate court considers all ofthe evidence, the

entirejury charge, and the parties’ arguments. Louis, 393 S.W.3d at 271, 272. Thejury heard evidence and watched the video ofthe traffic stop and subsequent arrest. (St.Ex. 3 & 9; Def.Ex.2) In addition to claiming the methamphetamine as her own, in the video from the patrol car, Appellant says that she should have thrown the drugs from the car, and that she hopes she does not have anything on her. (RR, Vol. 4, pp. 85, 95) Appellant’s testimonywas particularly damaging to her defense. Under cross-examination from the state, she admitted two times having lied during herdirect testimony. (RR, Vol. 4, p. 80, 91) One ofthe lies concerned whethershe knew there were drugs in the car. On direct, she said she did not know, but under cross, she admitted that she did know, and furtherknew itwas methamphetamine. (RR, Vol. 4, p. 83, 91) Appellant admitted that she had needles commonly usedto shoot methamphetamine in herpurse, as well as “q-tips” used to filterthe drug, and butane lighters. (RR, Vol. 4, p. 93) Finally, under cross, she admitted that she had planned to get high with her friends that night (RR, Vol. 4, p: 101) This testimonywas especially harmful in light ofherdefense—that she had lied to the officer and claimed the drugs, even though theywere not hers, to keep herboyfriend from getting in trouble. (KR, Vol. 4, pp. 75-76)

15Thejurywas charged onthree alternate theories ofappellant’s guilt: 1) that

she was guilty as the primary actor; 2) that she was guilty as a party, in that she intended to assist anotherpartyto possess methamphetamine and encouraged, solicited, directed, aided orattempted to aid in possession ofmethamphetamine; or 3) that she, with the requisite culpability, caused oraided an innocent or nonresponsible partyto engage in the prohibited conduct. (CR 84-88) Based on the evidence and testimony, it is unclear how the failure to narrow the acts ofparty liability—whethershe encouraged, solicited, directed, aided or attempted to aid—caused harm to Appellant because ofthe three alternative means charged. As the State pointed out intheirclosing: When you claim ownership ofmethamphetamines, when you’re carrying a meth kit in yourpurse, when you’re carrying syringes in yourpurse, when you admit to knowing about the methamphetamine in the vehicle, and you admit that your intent was to get high that night, that, ladies and gentlemen, is possession ofa controlled substance in the state ofTexas. When you put methamphetamine on anotherperson, that’s possession ofa controlled substance in the state ofTexas. And when you aid, attemptto aid, encourage, solicit someone else to commit the offense ofpossession ofa controlled substance, that’s also committing the offense ofpossession ofa controlled substance. (RR, Vol. 4, p. 113)

16OBJECTION TO THE LAW OF PARTIES iNSTRUCTION

Appellant objected to the inclusion ofjury instructions regarding the law of parties. (RR, Vol.4, p. 10-11) Herargument was that since Darwin Heidemeyer claimed both atthe time ofthe event, and attrial that he had no ideathe drugs had been placed in his pocket while he was sleeping, there was no evidence from which the court could determine that two or more persons activelyparticipated in committing the offense. “The defendant cannot aid in the commission ofan offense ifDarwin didn’t—ifthe otherparty did not know itwas being committed.” (RR, Vol. 4, p. 11) The trial court overruled the objection, and instructed thejury

on the law ofparties. (CR 85-86) Appellant’s argument ignores herown testimonythat, although she did not place the drugs in Darwin Heidemeyer’s pocket, shewas planning to get high that nightwith the otherpeople in the car. (RR, Vol. 4, p. 101) From thattestimony, as well as her statements fromthe patrol car—that she hoped she didn’t “have anything on me,” and that she should have thrown the drugs out ofthe car— as well as her admissionthat she lied on the stand about knowing whetherthere

were drugs in the car, the trial court could find evidence to support a charge on the law ofparties. (RR, Vol. 4, pp. 83-85)

.1/SUFFICIENCY OF TILE EVIDENCE

As stated, Appellant admitted to the arresting officerthat the drugs in the black boxsticking out ofDarwin Heidemeyer’s pocket were hers. She possessed drug paraphernalia in herpurse, and within her reach in the car. She testified that she was planning to get high with the people in the car. The evidence in this case is therefore legally sufficient to supportthe allegations. Jackson v. Virginia, 443 U.s. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981). CONCLUSION Because counsel is unable to raise any arguable issues for appeal, he is required to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991). Accompanying this briefis counsel’s motionto withdraw

onthese grounds.

PRAYER WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays that this Court permit herto withdraw afterthis Court’s own examination ofthe record in this cause and to afford Appellant his rightto file anypro se briefhe may wish to file.

18Respectfully Submitted:

Schoon Law Firm, P.C. 200 N. Seguin Avenue New Braunfels, TX 78130 State BarNo. 24046803 PH: (830) 627-0044 FAX: (830) 620-5657 susan@schoonlawfirm.com Attorney forAppellant

CERTIFICATE OF COMPLIANCE According to Microsoft Word’s word count tool, this document contains 4080 words.

CERTIFICATE OF SERVICE I hereby certifS’ that atrue and correct copy ofAppellant’s Briefwas delivered to the District Attorney ofComal County, Texas on this the 12th day ofNovember, 2015 by email to preslj~co.comal.tx.us

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