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

_____________________________________________ 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 3737665 THIRD COURT OF APPEALS

AUSTIN, TEXAS 1/12/2015 4:00:40 PM JEFFREY D. KYLE

CLERKii Identity of Judge, Parties, and Counsel
Honorable Martha J. Trudo, 264th District Court, P. O. Box 324, Belton, Texas 76513; Trial Judge Michael Waldman, Assistant District Attorney, Bell County, Texas, P.O. Box 540, Belton, Texas 76513; State’s Trial Counsel Terry E. Clark, Assistant District Attorney, Bell C ounty, Texas, P.O. Box 540, Belton, Texas 76513; State’s Trial Counsel Jeffrey D. Parker, P.O. Box 660, Belton, Texas 7651 3-0660, Appellant’s Trial Counsel Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513, State’s Appellate Counsel John A. Kuchera, 210 N. 6th St., Waco, Texas, 76701 , Appellant’s Appellate Counsel Shawn Michael Walker, Appellant, TDC #1944889, Este lle Unit, 264 FM 3478, Huntsville, TX 77320-3320iii Table of Contents Page Identity of Parties and Counsel ii Table of Contents iii-iv Index of Authorities v-ix Issues Presented x Statement of the Case 2 Statement of Facts 2-3 Summary of the Argument 3 Argument and Authorities 1. The evidence was not sufficient to sustain Walker ’s possession with 4-28 intent conviction as a principal. (a) Standard of review 4-5 (b) Indictment 5 (c) Possession generally 5-6 (d) Possession is “location specific” 6-7 (e) Constructive possession when others are present 7-9 (f) Constructive possession in a vehicle when other s are present 9-12 (g) Intent to distribute 12-15 (h) What constitutes a rational, reasonable inferen ce? 15-17 (j) Analysis 17- (i) driver’s side baggie 17-18 (ii) Walker’s pocket baggie 18 (iii) Pierce’s vaginal methamphetamine 18-19 (iv) bag behind the driver’s seat 19-20 (v) Frisbee methamphetamine 20-21 (vi) pink methamphetamine 21-22 (vii) syringes 22 (viii) MSM 22 (ix) legitimate inferences 22-28iv

2. The evidence was not sufficient to sustain Walker ’s possession with 29-34 intent conviction under a party theory. (a) Evidentiary requirements for conviction as a party 29-30 (b) Aiding and abetting under federal law 30-31 (c) Pierce as a principal 31 (d) Walker’s conduct before the arrest 31-32 (e) Walker’s conduct at the time of the arrest 32-33 (f) Walker’s conduct after the arrest 33-34 (g) Summary 34

Prayer for Relief 34-35 Certificate of Service 36 Certificate of Compliance 37v Table of Authorities Page(s) Cases Adames v. State , 353 S.W.3d 854 (Tex. Crim. App. 2011) ............. .............................................. 15 Adams v. State , No. 05-92-02268-CR, 1994 WL 370117 (Tex.App.—Dallas July 14, 1994, no pet.) (unpublished) ..................

................................................... .... 32 Ahrens v. State , 43 S.W.3d 630 (Tex.App.—Houston [1st Dist.] 2001, p et. ref’d) ..................... 34 Aldridge v. State , 482 S.W.2d 171 (Tex. Crim. App. 1972) ............. ................................................ 9 Allen v. State , 249 S.W.3d 680 (Tex.App.—Austin 2013, no pet.) .... .............6, 9, 25, 26, 27, 28 Bethancourt-Rosales v. State , 50 S.W.3d 650 (Tex.App.—Waco 2001, pet. ref’d) .... ................................ 10, 12 Blackman v. State , 350 S.W.3d 588 (Tex. Crim. App. 2011) ............. .............................................. 12 Brewer v. State, 126 S.W.3d 295, 297 Tex.App.—Beaumont 2004, pet. ref’d)

.................................................. ................................................... ........ 15 Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) ............. ................................................ 4 Brown v. State , 911 S.W.2d 744 (Tex. Crim. App. 1995) ............. ................................................ 7 Burdine v. State , 719 S.W.2d 309 (Tex. Crim. App. 1986) ............. .............................................. 29 De La Garza v. State , 898 S.W.2d 376 (Tex.App. – San Antonio 1995, no pet .) ................................. 13vi

Evans v. State , 202 S.W.3d 158 (Tex. Crim. App. 2006) ............. ............................................ 8, 9 Harvey v. State , 487 S.W.2d 75 (Tex. Crim. App. 1972) .............. ................................................. 9 Hernandez v. State , 819 S.W.2d 806 (Tex. Crim. App. 1991) ............. .............................................. 29 Herrera v. State , No. 07-09-0071-CR, 2009 WL 2618301 (Tex. App.—Amari llo Aug. 26, 2009, no pet.) ...........................

................................................... ......... 13 Hooper v. State , 214 S.W.3d 9 (Tex. Crim. App. 2007) ............... .......................................... 16, 17 Jackson v. Virginia , 443 U.S. 307 (1979) ...............................

................................................... ...... 4, 15 Jenkins v. State , 76 S.W.3d 709 (Tex.App.—Corpus Christi 2002, pet. r ef’d) .............................. 9 Lane v. State , 151 S.W.3d 188 (Tex. Crim. App. 2004) ............. ................................................ 4 Marable v. State , 85 S.W.3d 287 (Tex. Crim. App. 2002) .............. ............................................... 30 Mares v. State , 801 S.W.2d 121 (Tex.App. – San Antonio 1990, no pet .) ................................... 9 Martin v. State , 753 S.W.2d 384 (Tex. Crim. App. 1988) ............. ................................................ 5 Moreno v. State , 821 S.W.2d 344 (Tex.App.-Waco 1991, pet. ref'd) ... ....................................... 6, 7 Oaks v. State , 642 S.W.2d 174 (Tex. Crim. App. 1982) (en banc) ... .......................................... 9 Owen v. State , No. 05-91-00127-CR, 1992 WL 166598 (Tex. App.—Dalla s July 15, 1992, pet. ref'd) (unpublished) ...............

................................................... .... 13vii

Paulman v. State , No. 2-07-291-CR, 2008 WL 4531707 (Tex.App.—Fort Wor th Oct. 9, 2008, pet. dism’d) (unpublished) ...............

................................................... .... 7 Pesina v. State , 949 S.W.2d 374 (Tex.App.—San Antonio 1997, no pet.) ................................. 29 Poindexter v. State , 153 S.W.3d 402 (Tex. Crim. App. 2005) ............. ............................................ 5, 8 Powell v. State , 502 S.W.2d 705 (Tex. Crim. App. 1973) ............. ................................................ 6 Ransom v. State , 920 S.W.2d 288 (Tex. Crim. App. 1996) ............. .............................................. 30 Richardson v. State , 879 S.W.2d 874 (Tex. Crim. App.1992) .............. .............................................. 31 Roberson v. State , 80 S.W.3d 730 (Tex.App.—Houston [1st Dist.] 2002, p et. ref’d) ..................... 10 Santiestan-Pileta v. State , 421 S.W.3d 9 (Tex.App.—Waco 2013, pet. ref’d) ..... ......................................... 9 Taylor v. State , 684 S.W.2d 682 (Tex. Crim. App. 1984) ............. .............................................. 15 Thornton v. State , 425 S.W.3d 289 (Tex. Crim. App. 2014) ............. .......................................... 4, 34 United States v. Campos , 306 F.3d 577 (8th Cir. 2002) ......................

................................................... ..... 13 United States v. Cooper , No. 8:13-cr-187, 2013 WL 5741786 (M.D. Fla. Oct. 22 , 2013) (unpublished) .....................................

................................................... .............. 28 United States v. Coppin , 1 Fed. Appx. 283 (6th Cir. 2001) (unpublished) .... ............................................ 28 United States v. Crain , 33 F.3d 480 (5th Cir. 1994) .......................

................................................... ...... 23viii

United States v. Delagarza-Villarreal , 141 F.3d 113 (5th Cir. 1997) ......................

................................................... ..... 30 United States v. Ferg , 504 F.2d 914 (5th Cir. 1974) ......................

................................................... ..... 10 United States v. Gordon , 700 F.2d 215 (5th Cir. 1983) ......................

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

................................................... ....... 7 United States v. Jones , 518 F.2d 64 (9th Cir. 1975) .......................

................................................... ...... 28 United States v. Littrell , 574 F.2d 828 (5th Cir. 1978) ......................

................................................... ..... 11 United States v. Lombardi , 138 F.3d 559 (5th Cir. 1998) ......................

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

.................................................. 32, 33 United States v. Meneses–Davila , 580 F.2d 888 (5th Cir.1978) .......................

................................................... ..... 12 United States v. Meshack , 225 F.3d 556 (5th Cir. 2000), amended on reh'g in part, 244 F.3d 367 (5th Cir. 2001) ...............................

................................................... ............ 27 United States v. Moreno-Hinojosa , 804 F.2d 845 (5th Cir. 1986) ......................

.................................................. 10, 11 United States v. Morrison , 220 Fed. Appx. 389 (6th Cir. 2007) (unpublished) .. .................................... 31, 32 United States v. Natel , 812 F.2d 937 (5th Cir. 1987) ......................

................................................... ..... 30 United States v. Ramos , 476 F.2d 624 (9th Cir. 1973) ......................

................................................... ..... 12ix

United States v. Savinoch , 845 F.2d 834 (9th Cir. 1988) ......................

................................................... ..... 32 United States v. Sliwo , 620 F.3d 630 (6th Cir. 2010) ......................

................................................... ..... 34 United States v. Smith , 20 Fed. Appx. 258 (6th Cir. 2001) (unpublished) ... ............................... 13, 14, 15 United States v. Stanley , 24 F.3d 1314 (11th Cir. 1994) .....................

................................................... .... 12 United States v. Zule , 581 F.2d 1218 (5th Cir. 1978) .....................

................................................... .... 11 Urbano v. State , 837 S.W.2d 114 (Tex. Crim. App. 1992) ............. ........................................ 15, 16 Wooden v. State , 101 S.W.3d 542 (Tex.App. – Fort Worth 2003, no pet, ) .................................... 29 Statutes Tex. Health & Safety Code Ann. § 481.002 (38) ..... ................................................. 5 Tex. Penal Code Ann. § 7.02 (a)(2) ................

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

................................................... .... 15 New Webster’s Dictionary of the English Language ( 1971).................................. 15x Issues Presented

1. Whether the evidence was not sufficient to sust ain Walker’s possession with intent conviction as a principal.

2. Whether the evidence was not sufficient to sust ain Walker’s possession with intent conviction under a party theory.1 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

___________________________________________________ _________ 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 brief pursuan t to the provisions of the Texas Rules of Appellate Procedure.2 Statement of the Case On November 13, 2013, Shawn Michael Walker (“Walker ”) was charged by indictment with the first degree felony offense of possession of methamphetamine with an intent to distribute in an amount of four g rams or more but less than 200 grams. CR 4. On July 14, 2014, Walker entered a not guilty plea and proceeded to trial before a jury. 4 RR 1, 6-7. On July 15, 2014, the jury found him guilty of the charged offense and assessed his punishment at 55 years in prison and no fine. 5 RR 58-59; 6 RR 105-06; CR 36, 40. The trial court rendered j udgment in accordance with the jury’s verdict. 6 RR 106; CR 47-49. The trial court signed Walker’s certification of h is right to appeal. CR 41. Walker timely filed his notice of appeal on July 28 , 2014. CR 52. His trial counsel was allowed to withdraw and undersigned counsel was appointed to handle the appeal. CR 57-61, 64.

Statement of Facts On October 27, 2013, at 5:11 p.m., Killeen police officers were called to 309 Root Avenue (an area noted for high drug activity) regarding a subject armed with a gun. 4 RR 18-21, 44-45, 66. They found a white va n with a license plate number3

that matched the one given by dispatch. 4 RR 21, 3 4; State Ex. 1. Tiffany Diane Pierce (“Pierce”) was is in the driver’s seat. 4 R R 23. Walker was seated in the front passenger seat. 4 RR 24; State Ex. 2. Other occupants of the van were Joseph E. Copeland and Caroline R. Evans. 4 RR 27, 47. The other facts necessary for this Court’s consideration are set forth under the respective issues.

Summary of the Argument First issue: The evidence proved only that Walker either possess ed or constructively possessed methamphetamine in persona l use amounts. Therefore, the evidence was insufficient to support his conviction for possession with intent to distribute. Second issue: Assuming Tiffany Pierce did possess methamphetamine in the alleged amount with an intent to distribute, nothin g in the record establishes that Walker in any way assisted or encouraged her in her commission of the offense. Thus, the evidence was also insufficient to sustain Walker’s conviction under a party theory.4 Argument and Authorities 1. The evidence was not sufficient to sustain Walk er’s possession with intent conviction as a principal.

(a) Standard of review Sufficiency of the evidence under the federal due process standard is now reviewed under the legal sufficiency standard set f orth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). This standard is more rigorous than the previous Te xas legal sufficiency review. Id. Under this standard, evidence is insufficient to su pport a conviction if, considering all the record evidence, both State and defense, in th e light most favorable to the verdict, no rational fact finder could have found t hat each essential element of the charged offense was proven beyond a reasonable doub t. Jackson, 443 U.S. at 319. Any inference made by the jury must be supported by sufficient evidence. Thornton v. State, 425 S.W.3d 289, 304 (Tex. Crim. App. 2014). Beyond a reasonable doubt means proof to a high degree of certainty. Lane v. State, 151 S.W.3d 188, 192 (Tex. Crim. App. 2004). Viewed in the light most favorab le to the verdict, the evidence is insufficient when either (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense ; or (2) the evidence conclusively establishes reasonable doubt. Jackson, 443 U.S. at 314, 319 n. 11, 320. This review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-185

(“Sufficient evidence is ‘such evidence, in charact er, weight, or amount, as will legally justify the judicial or official action dem anded.’”) (Cochran, J., concurring).

(b) Indictment Walker’s indictment reads in relevant part as follo ws: Shawn Michael Walker, . . . Defendant, on or about the 27th day of October . . . 2013 . . . did then and there, indivi dually and as a party with Tiffany Diane Pierce, intentionally and knowin gly possess with intent to deliver a controlled substance, to-wit: Methamphetamine, in an amount by aggregate weight, including adulterant s and dilutants, of four grams or more but less than 200 grams. CR 4.

(c) Possession generally In cases involving unlawful possession of a control led substance, the State must prove that the accused intentionally or knowin gly exercised actual care, custody, control, or management over the substance and that the accused knew the matter possessed was contraband. Tex. Health & Saf ety Code Ann. § 481.002 (38) (West 2010); Poindexter v. State, **153 S.W.3d 402, 405 (Tex. Crim. App. 2005);** Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). The ad verbs “intentionally and knowingly” apply to the conduct itself – not to the result of the6

conduct or the circumstances surrounding the conduc t. Allen v. State, 249 S.W.3d 680, 690 (Tex.App.—Austin 2013, no pet.). Possessi on need not be exclusive and evidence which shows that an accused jointly posses sed the contraband with another is sufficient. Id. Whether the theory of prosecution is sole or join t possession, the evidence must link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that t he accused knew of the contraband’s existence and that he had possession o f it. Id. Additionally, to establish unlawful possession, the state move prove that the defendant knew that the object possessed was a controlled substance. Powell v. State, 502 S.W.2d 705, 708 (Tex. Crim. App. 1973); Allen, 249 S.W.3d at 690.

(d) Possession is “location specific” When the State puts on evidence of the presence of a controlled substance(s) in multiple locations, the circumstances present in each specific location must be analyzed separately. In Moreno v. State, 821 S.W.2d 344, 352 (Tex.App.-Waco 1991, pet. ref'd), the defendant argued the evidenc e was insufficient to affirmatively link him to the 745 grams of cocaine found under th e hood of the vehicle. The defendant was a passenger in the vehicle, and upon his arrest and booking, peace officers recovered eleven grams of cocaine in the d efendant's wallet. Id. However,7

the Waco Court found the evidence insufficient to a ffirmatively link the defendant to the cocaine found under the vehicle's hood becau se the defendant: (1) was not connected with the ownership or control of the car; (2) made no furtive gestures; (3) did not attempt to escape; (4) made no incriminatin g statements; (5) was not under the influence of an illegal drug; and, (6) the odor of an illegal drug was not present in or around the vehicle. Id. ; see Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995) (“[E]ach defendant must . . . be affirma tively linked with the drugs he allegedly possessed [.]”); United States v. Hernandez-Beltran, 867 F.2d 224, 226-27 (5th Cir. 1989) (evidence sufficient to support two counts of possession with intent to distribute but not third count); Paulman v. State, No. 2-07-291-CR, 2008 WL 4531707, at *3 (Tex.App.—Fort Worth Oct. 9, 2008, p et. dism’d) (unpublished) (court engaged in analysis to determine whether app ellant could be linked to all or part of methamphetamine found in house).

(e) Constructive possession when others are present When an accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that th e accused had knowledge of or control over the contraband unless there are additi onal independent facts and circumstances linking the accused to the knowing po ssession of the contraband.8

Poindexter, 153 S.W.3d at 406. “[T]he legal issue is whether t here was evidence of circumstances, in addition to mere presence, that w ould adequately justify the conclusion that the defendant knowingly possessed t he substance.” Evans v. State , 202 S.W.3d 158, 162 n. 9 (Tex. Crim. App. 2006). I n Evans the Court of Criminal Appeals chose to no longer refer to “affirmative li nks” as if that term denotes some independent test of legal sufficiency: “Henceforth , we will use only ‘link’ so that it is clear that evidence of drug possession is judged by the same standard as all other evidence.” Id. The Court did include in a footnote the following “ non-exclusive list of possible ‘affirmative links’ that Texas courts h ave recognized as sufficient, either singly or in combination, to establish a person’s p ossession of contraband”:
(1) the defendant's presence when a search is condu cted; (2) whether the contraband was in plain view; (3) the defendant 's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) wheth er the defendant possessed other contraband or narcotics when arrest ed; (6) whether the defendant made incriminating statements when arrest ed; (7) whether the defendant attempted to flee; (8) whether the de fendant made furtive gestures; (9) whether there was an odor of contraba nd; (10) whether other contraband or drug paraphernalia were present ; (11) whether the defendant owned or had the right to possess the pla ce where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.9

Evans , 202 S.W.3d at 162 n. 12. 1 However, “[m]ere presence in the vicinity of the c ontraband or where contraband is being used or possessed by others doe s not, by itself, support a finding that a person is a joint possessor or a party to th e offense.” Allen, 249 S.W.3d at 691; Evans, 202 S.W.3d at 162 ; Harvey v. State, 487 S.W.2d 75, 77 (Tex. Crim. App. 1972). In fact, mere presence does not make an acc used a party to joint possession even if the accused knows of the existence of the c ontraband and has knowledge of an offense. Oaks v. State, **642 S.W.2d 174, 177 (Tex. Crim. App. 1982);** Allen, 249 **S.W.3d at 692;** Mares v. State, 801 S.W.2d 121, 126 (Tex.App. – San Antonio 1990, no pet.) (“possession means more than being where t he action is, it involves the exercise of dominion and control over the thing all egedly possessed”).

(f) Constructive possession in a vehicle when othe rs are present In order to prove possession when multiple individ uals are found in the same vehicle as contraband, there must be evidence of so me nexus between the accused

1 Other indicators of possession courts have found i nclude: whether the accused's fingerprints were found on incriminating items associated with t he controlled substance, Oaks v. State, 642 S.W.2d 174, 178 (Tex. Crim. App. 1982) (en banc); “ Implausible story” link, Santiestan-Pileta v. State, 421 S.W.3d 9, 14 (Tex.App.—Waco 2013, pet. ref’d); Nervous, unsettled demeanor. Jenkins v. State, 76 S.W.3d 709, 713 (Tex.App.—Corpus Christi 2002, p et. ref’d); and whether the defendant was driving the car where the drugs were located, Aldridge v. State, 482 S.W.2d 171, 174 (Tex. Crim. App. 1972).10

and the prohibited substance besides physical proxi mity. United States v. Ferg, 504 F.2d 914, 917 (5th Cir. 1974). 2 In Ferg, the Fifth Circuit held the evidence of possession to be insufficient to sustain the convic tion: The facts of this case illustrate the logic of this ‘mere presence’ rule. The government presents only two pieces of circumst antial evidence in an attempt to link Ferg with the seized marijuana. Ferg was traveling with Shaw, the person who admitted having purchased the marijuana, and Ferg was a passenger in the car in which the ma rijuana was concealed. Beyond the admission by Ferg that he was a traveling companion of one guilty of illegal possession of ma rijuana, the government failed to establish that Ferg in any way violated [the federal drug statute]. The government's evidence failed to prove that Fer g had ever maintained possession of the contraband or had any intention of participating in the distribution of it. . . . , hi s companion, in no way implicated Ferg in the statement he made to the fed eral agents. There was no evidence to show that Ferg and Shaw had trav eled together for a sustained period of time after the marijuana was admittedly obtained by Shaw. Moreover, the government did not establish that Ferg had rented the car or even shared the cost of rental. I t was not even shown or claimed that Ferg had ever driven the car or tha t he could drive an automobile. We do not accept the government's appar ent invitation to infer guilt by association. Id. at 917; See Roberson v. State, 80 S.W.3d 730, 741 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) (no evidence beyond mere p resence of three individuals in car together suggesting that they were working as a unit for any purpose); United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) (“Even if [the

2 Texas courts often look to federal case law (parti cularly the Fifth Circuit) for guidance regarding whether possession has been sufficiently proven. S ee e.g. Bethancourt-Rosales v. State, 50 S.W.3d 650, 654 (Tex.App.—Waco 2001, pet. ref’d) (“The Fif th Circuit requires that evidence of control be supplemented by other circumstantial evidence ‘t hat is suspicious in nature or demonstrates guilty knowledge.’”).11

passenger] knew that [the driver] was making an ill egal marihuana run, this fact would not be sufficient evidence to establish his p ossession without an additional showing that he was riding in the truck to particip ate in the possession and distribution. The government did not make this addi tional showing even circumstantially beyond a reasonable doubt”); United States v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983) (“We are unable to find an y evidence, beyond McMahon's ‘mere presence’ in the truck, to indicate that he h ad maintained control over the contraband, had any intention of participating in t he distribution of the contraband, or had any knowledge of it whatsoever. To affirm de fendant's conviction would be to countenance a conviction based on guilt by assoc iation.”); United States v. Zule, 581 F.2d 1218, 1221 (5th Cir. 1978) (constructive p ossession not shown where there was no evidence that defendant owned or had control of sports car from which another person removed contraband or that defendant handled the contraband at any time); United States v. Littrell, 574 F.2d 828, 835 (5th Cir. 1978) (constructive possession not shown where there was no evidence th at defendant owned the car or was aware of cocaine presence in glove compartment or that he ever handled the cocaine at any time); United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) ( Even if defendant passenger knew that driver was ma king an illegal marihuana run, this fact would not be sufficient ev idence to establish his possession without an additional showing that he was riding in the truck to participate in the12

possession and distribution.); United States v. Ramos, 476 F.2d 624, 625 (9th Cir. 1973) (It is “well established that a passenger may not be convicted [of possession] unless there is evidence connecting him with the co ntraband, other than his presence in the vehicle.”); United States v. Stanley, 24 F.3d 1314, 1320-21 (11th Cir. 1994) (possession with intent to distribute conviction re versed because of lack of evidence that defendant passenger in vehicle had any knowled ge of crack cocaine hidden under the dashboard); Cf. Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011) (front seat passenger defendant had traveled hundreds of miles with two other men, after which time the driver was given a box, l ater found behind driver’s seat of van and which contained three kilograms of cocaine) ; Bethancourt-Rosales v. State, 50 S.W.3d 650, 654 (Tex.App.—Waco 2001, pet. ref’d) (defendant had been in possession of vehicle for five days wherein 9.83 ki lograms of cocaine was found in a hidden compartment welded to the undercarriage of the vehicle).

(g) Intent to distribute An intent to distribute is usually proven through c ircumstantial evidence. “As a general rule, intent to distribute can be inferre d from the possession of a large amount of controlled substance.” Bethancourt-Rosales v. State , 50 S.W.3d 650, 653 (Tex. App.—Waco 2001, pet. ref'd) (citing United States v. Meneses–Davila, 58013

F.2d 888, 897 (5th Cir.1978)). 3 Again however, an intent to distribute based on t he presence of a large quantity of drugs cannot be inf erred absent a showing of knowing possession by the accused. In United States v. Smith, 20 Fed. Appx. 258 (6th Cir. 2001) (unpublished), wherein appellant was convicte d of possession with intent to distribute (and aiding and abetting) methamphetamin e, amphetamine and cocaine, the relevant facts were as follows. Appellant was a passenger in a rented vehicle on which a traffic stop was effected. He appeared to be “stoned” and “had a white mucus substance around his lips” the vehicle had tr ash strewn about and there was a smell of body odor “as if the men had not bathed in a couple of days.” Id. at 261. The vehicle appeared to have been rented by the dri ver’s wife. Id. After a drug dog alerted to a black canvas bag behind the driver’s s eat, a search showed it to contain large quantities of illegal drugs. Id. at 261-62. A further search revealed a loaded pistol “next to the passenger seat between the seat and the console,” a loaded magazine in the glove compartment, hotel and food r eceipts from the previous two days, a set of digital scales and wrapping material used to wrap the drugs. Id. at 262.

3 Other factors from which an intent to distribute c an be inferred include: The presence of large amounts of cash or the fact that the controlled sub stance is individually wrapped in small packages can be evidence of an intent to distribute, Herrera v. State , No. 07-09-0071-CR, 2009 WL 2618301, at *3-4 (Tex. App.—Amarillo Aug. 26, 2009, no pet.); the presence of a firearm. De La Garza v. State, 898 S.W.2d 376, 379 (Tex.App. – San Antonio 1995, n o pet.); United States v. Campos, 306 F.3d 577, 580 (8th Cir. 2002) (“A gun is generally considered a tool of the trade for drug dealers.”); and the presence of scales. Owen v. State, No. 05-91-00127-CR, 1992 WL 166598, at *4 (Tex. App.—Dallas July 15, 1992, pet. ref'd) (unpublished).14

Last but not least, a “shooter pipe used to ingest narcotics” was found in appellant’s front pants pocket. Id. The Sixth Circuit held that the evidence was insu fficient to support the possession with intent to distribute ch arges: The government presented no direct evidence of actu al possession by Smith. In fact, there is no direct evidence that he knew of the drugs or exercised control over the drugs or the vehicle, or that he was anything but a passenger in the vehicle. Thus, the issue bef ore us is whether the government presented sufficient circumstantial evid ence to establish that Smith constructively possessed the methampheta mine and the amphetamine with the intent to distribute the drugs

. . . . With respect to these counts, the evidence presented at trial estab lished that 5854.4 grams of amphetamine and 436.9 grams of methampheta mine were discovered in a bag located on the floor behind the driver's seat. DEA Agent Ramsey testified that these quantities were c onsistent with drug distribution. Thus, the jury was entitled to infer an intent to distribute from these quantities. While the evidence may have been sufficient to establish constructive possession, if not actual po ssession, of these drugs by the possessor and driver of the vehicle, t he problem with the convictions of Smith, a passenger, is the lack of e vidence showing any possession of these drugs by him. The government pr esented no evidence that Smith exercised any control over or h ad access to these drugs. The drugs were found in a bag, covered by a shirt, on the floor behind the driver's seat. Additionally, the governm ent presented no evidence that Smith exercised any type of control o ver the vehicle or the bag in which the drugs were located. The govern ment's only evidence was that Smith was a passenger in a vehicl e which contained drugs likely intended for distribution.

. . . The government also failed to present any evidence to support Smith's convicti on on an aiding and abetting theory. Even if Smith was aware of the dru gs or the driver's involvement in illegal activity, that awareness wou ld be insufficient to convict him of aiding and abetting possession of dr ugs with intent to distribute.15

Id. at 266-67.

(h) What constitutes a rational, reasonable infere nce? An appellate court’s duty in addressing a sufficien cy of the evidence complaint under the Jackson standard is to ensure the rationality of the factf inder. Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (“On review, this Court determines whether the necessary inferences made by the trier of fact are reasonable, based upon the cumulative force of all of the evidence.”). Ci rcumstantial evidence is “direct proof of a secondary fact which, by logical inferen ce, demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984). “In the law of evidence, an inference . . . is a logica l consequence flowing from a proven fact.” Brewer v. State, 126 S.W.3d 295, 297 Tex.App.—Beaumont 2004, pet. re f’d). “Logic” is “the apparently unavoidable cause and ef fect relationship of events leading to a particular conclusion.” New Webster’s Dictionary of the English Language 562 (1971). “Logical relevancy” is define d 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).
In Urbano the appellant argued that his capital murder convic tion for16

committing murder for remuneration or the promise o f remuneration was not supported by sufficient evidence. Urbano, 837 S.W.2d at 115. The Court of Criminal Appeals agreed: [T]he evidence and reasonable inferences therefrom established that at the time of the offense appellant was a member of a prison gang; that the gang had definite rules regarding murder, promo tion in rank, and the consequences of promotion in rank; i.e., increa sed access to money, drugs, and goods; that appellant murdered on behalf of the gang; and that after the murder he rose in rank. There was n o direct evidence, however, that at the time of the killing, appellant was aware of the gang rules in question and that he acted with those rule s in mind. Nor was there circumstantial evidence from which the jurors could conclude beyond a reasonable doubt that appellant must have known of the relevant gang rules and committed the murder to rec eive a benefit from the operation of the rules. Certainly, the evidence raises a strong suspicion that appellant acted with the gang rules in mind, that is, that he murdered with an expectation of tangible benefit . But appellant’s intent or state of mind with respect to an expectat ion of benefit was not proven to a high degree of certainty. Rational jur ors could not conclude beyond a reasonable doubt simply from appe llant’s membership in the gang that he was aware of all the gang’s rules. (emphasis added) Id. at 116-17.
In Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007), wherein appell ant was convicted of aggravated assault of a public ser vant, the Court of Criminal Appeals addressed, inter alia, what is and what is not a reasonable inference. Id. at 15-17. The following language is instructive: Under the Jackson [ v. Virginia ] test, . . . juries are permitted to draw multiple reasonable inferences from the evidence (d irect or circumstantial), but they are not permitted to draw conclusions based on speculation. Without concrete examples, it can be difficult to17

differentiate between inferences and speculation, a nd between drawing multiple reasonable inferences versus drawing a ser ies of factually unsupported speculations. This hypothetical might h elp clarify the difference. A woman is seen standing in an office h olding a smoking gun. There is a body with a gunshot wound on the fl oor near her. Based on these two facts, it is reasonable to infer that the woman shot the gun (she is holding the gun, and it is still smoking). Is it also reasonable to infer that she shot the person on the floor? To mak e that determination, other factors must be taken into consideration. If she is the only person in the room with a smoking gun, then it is reasonab le to infer that she shot the person on the floor. But, if there are oth er people with smoking guns in the room, absent other evidence of her guil t, it is not reasonable to infer that she was the shooter. No rational juro r should find beyond a reasonable doubt that she was the shooter, rather than any of the other people with smoking guns. To do so would require im permissible speculation. But, what if there is also evidence th at the other guns in the room are toy guns and cannot shoot bullets? Then, i t would be reasonable to infer that no one with a toy gun was the shooter. It would also be reasonable to infer that the woman holding the smoking gun was the shooter. This would require multiple infere nces based upon the same set of facts, but they are reasonable inferenc es when looking at the evidence. We first have to infer that she shot the gun. This is a reasonable inference because she is holding the gun , and it is still smoking. Next, we have to infer that she shot the p erson on the floor. This inference is based in part on the original inf erence that she shot the gun, but is also a reasonable inference drawn from the circumstances.

Id. at 15-16.

(j) Analysis (i) driver’s side baggie The first article containing methamphetamine was a small Ziploc baggie box “right next to the driver’s side on the floor board ,” “on the front driver’s door,”18

between the seat and the door, “right inside the do or jamb.” 4 RR 28, 66-67, 72-73; State Ex. 3, 18. This article was in plain view to the officer who found it because he approached the vehicle from the driver’s side door. 4 RR 66. It would not have been in plain view to someone seated in the front p assenger seat. The net weight of this methamphetamine was 2.16 grams. State Ex. 23; 4 RR 88, 101. The State’s expert witness, Detective Mallow, testified that th is was a user amount, not a distribution amount. 4 RR 95-96. (ii) Walker’s pocket baggie A search of Walker’s person at the Killeen City Ja il revealed a small baggie of methamphetamine in Walker’s front left change po cket. 4 RR 34, 99; State Ex. 17. The net weight of this methamphetamine was 0.2 8 grams. 4 RR 87, 99; State Ex. 23. Detective Mallow, testified that this was a user amount, not a distribution amount. 4 RR 95-96. (iii) Pierce’s vaginal methamphetamine A strip search of Pierce at the jail yielded up tw o pair of tweezers and also revealed a string hanging out of her vaginal area. 4 RR 53-54. When Pierce refused to pull out the string, she was taken to a hospital to have it removed; upon arrival at the hospital, “there was a brown bag sitting next t o her and several baggies of crystallike substance that she had pulled out of her vagin al area.” 4 RR 55-56. There was19

no evidence at trial as the net weight of the subst ance in these baggies but nothing in the record suggests that Walker was aware that P ierce was carrying methamphetamine in her vagina. (iv) bag behind the driver’s seat

It should first be noted that the entire area from behind the front seats to the rear of the van, was simply “full of stuff”; State Ex. 4, 7:
State: How was this van? Was it neat and clean, r elatively empty? Officer Lawson: No. It was completely full of stu ff. Clothes, trash, a lot of stuff. 4 RR 49. Officer Van Valkenburg: [T]here was a lot of stuff in the vehicle. Appeared like somebody might have been living in the vehicle.” 4 RR 68. Officer Van Valkenburg “[T]here was a lot . . . of luggage in there.” 4 RR 71. Although the bag behind the driver’s seat was only found a few feet from the front passenger seat, it was hidden under clothes i nside a box:

Officer Lawson: . . . After that I found a blue ba g and inside the bag was a black box, inside the black box was a large gallon size Z iploc bag with a white crystallike substance and razor inside. State: And where was this blue bag inside the van? Officer Lawson: It was directly behind the passeng er seat of the vehicle.20

State: So it was in the second seat behind the fro nt passenger and driver seat directly behind the passenger seat? Officer Lawson: Yes. 4 RR 49, 57-58; State Ex. 4. This Ziploc bag conta ined 40.58 grams of methamphetamine and a razor. 4 RR 59, 88; State Ex . 5, 6, 20, 23 (gallon Ziploc bag with crystal-like substance in it; razor inside 4 RR 59). When Officer Lawson was asked “What else was in that blue bag?” she res ponded, “[i]t was female clothing.” 4 RR 58-59. (v) Frisbee methamphetamine In the rear area of the van, inside a laundry bag, methamphetamine was found in a red Frisbee, wrapped in a pair of women’s pant s: State: And then tell us about the rest of your sea rch of the van. What other things did you find? Officer Lawson: Once I got to the rear of the veh icle and the trunk area where the back door as you saw in the picture, . . . there we re several bags of laundry in it. So I started going through the laundry, and in one of the bags I found wrapped in a pair of pants another large quantity of crystal-l ike substance. 4 RR 51-52, 103. State: And what are we looking at in State’s Exhib it Number 12? Officer Lawson: That is out of the bag in the rear compartment. This is the second bag of crystal-like substance with the red Frisbee inside it. 4 RR 59-60; State Ex. 12, 13. State: What other items were found in the bag that had the red Frisbee and the crystal methamphetamine?21

Officer Lawson: There was female clothing, size sm all through large shirts, a pair of tan size three, . . . this was found inside the female jeans, size three, wrapped up in a baggie. State: And State Exhibit 14, what are we looking a t there? Officer Lawson: That’s the same thing just closer up. State: That same red Frisbee with the crystal subs tance you believe to be methamphetamine? Officer Lawson: Yes. 4 RR 60; State Ex. 14. This methamphetamine weighe d 56.92 grams. 4 RR 88, 103; State Ex. 18, 23. (vi) pink methamphetamine A second bag containing pink methamphetamine was fo und directly behind the driver’s seat, 4 RR 73; State Ex. 7, 8, 9: Officer Van Valkenburg: “[W]hen I finished searching around the driver side door and the seat, . . . I . . . got in the back of the van, and I began searching that area, I found another bag of crystal methamphetamine. This one was the pink bag, and that was also a fairly small Ziploc bag wh ich was directly behind the [driver’s] seat.” 4 RR 69-70. The bag and the substance inside were both pink in color. 4 RR 70. This methamphetamine weighed 5.64 grams. 4 RR 88 , 101-102, State Ex. 19, 23. In a post-arrest interview, Walker indicated he was aware of this bag, adamantly maintaining that it was not methamphetamine: “I kn ow that’s not real.” State Ex. 24, 4:10:50.22 (vii) syringes
In the rear of the van, inside a women’s cosmetic bag unused syringes were found. 4 RR 61; State Ex. 16. Officer Lawson: “T here was a multicolored . . . bag that you put make and stuff in, and it had a wh ole bunch of syringes in it.” 4 RR 52. Used syringes were also found in the rear o f the van: Officer Van Valkenburg: In the back seat, the very first seat, there was a bunch of syringes on the left side of the floor, on the right side of the floor, some of them still had liquid inside of them , which I assume was methamphetamine. And some of them were empty, had the caps off, and you could see that they had been used or becaus e there was blood on the needle and also inside of them. 4 RR 71.
(viii) MSM

A search of the rear area of the van also turned u p an “MSM container.” 4 RR 60-61; State Ex. 15. The Killeen detective in c harge of the case testified that MSM is a horse supplement (not a dangerous drug) co mmonly used to mix with methamphetamine to increase the weight of the subst ance. 4 RR 97, 108. (ix) legitimate inferences
When officers arrived, Pierce was seated in the dri ver’s seat. 4 RR 23. Walker was seated in the front passenger seat. 4 RR 24; S tate Ex. 2. Walker said the van belonged to his girlfriend. 4 RR 25-26. Pierce wa s not his girlfriend. 4 RR 26. The23

evidence suggested that someone had been living out of the van and that someone was a woman – no men’s clothing was found in the va n. It can be legitimately inferred that Walker was not living out of the van. It can be arguably inferred that Pierce was living out of the van. Thus it can also be legiti mately inferred that Pierce possessed the large quantities of methamphetamine f ound in “bag behind the driver’s seat” and the “Frisbee methamphetamine” – not Walke r. See United States v. Crain, 33 F.3d 480, 486 (5th Cir. 1994) (“We are especiall y reluctant to infer constructive possession of contraband by one occupant when there is evidence in the record explicitly linking the contraband to another occupa nt.”). Killeen police officers were dispatched to 309 Roo t at 5:11 p.m. based on an anonymous phone call. 4 RR 18, 39, 44-45. The fir st officer to respond probably arrived on scene within five minutes of the call. 4 RR 51. How long had the four individuals been in the van together at the time of ficers arrived? Probably not very long. Walker stated at the time of the arrest rega rding the individuals in the back of the van “that he had just picked them up to give th em a ride,” and “[t]hey hadn’t been in the van very long.” 5 RR 15. It can be le gitimately inferred that Pierce and Walker were in the van before the other individuals . But nothing in the record provides a legitimate basis to infer that Walker ha d been in the van long enough to know everything it contained. Furthermore, nothing in the record provides a legitimate basis that he had been anywhere in the v an except the front passenger seat.24

The State, based on the weight of the “bag behind t he driver’s seat” (40.58 grams) and the “Frisbee methamphetamine” (56.92 grams), co nceded that Pierce possessed with the intent to distribute, but asked the jury t o infer that this also proved Walker’s intent to distribute: You have 100 grams of methamphetamine and a van tha t goes back to a friend of his, . . . did Mr. Walker, along with t he driver of this vehicle, possess more than 4 grams with the intent to distri bute it? I think the answer is clear. 5 RR 41. [Y]ou have 105.5 grams of methamphetamine in a van owned by this defendant’s wife that he’s sitting in the front pas senger’s seat. 5 RR 53. But this was not a legitimate inference b ecause this methamphetamine was in bags and out of sight from the front passenger s eat. The State asked the jury to infer that Walker knew about the “100 grams of methamphetamine” in the van because he had 0.28 gra ms in his pocket: You should not have any doubt that there was more t han 100 grams of methamphetamine in that van. And for sure, there’s no doubt he had at least a gram on him because he had it at the jail. The only evidence you have before you, that much narcotics, someone is selling it. Someone is distributing it. 5 RR 40. But as noted above in subsection (d) , each location where a controlled substance is found must be analyzed individually. It was not legitimate to infer that because Walker possessed 0.28 grams in his pocket, he therefore possessed the methamphetamine in “bag behind the driver’s seat” a nd the “Frisbee25

methamphetamine.” See Allen, 249 S.W.3d at 701 (possession of “roach” carried little weight or probative value in determining whe ther appellant had custody and control of cocaine found in kitchen cabinets and on top of refrigerator). The State asked the jury to infer Walker’s intent to distribute based on the presence of syringes: “You have syringes. Is that just possession . . . of less than a gram?” 5 RR 41. Nothing in the record provides a legitimate basis to infer that Walker could see the syringes from where he was sea ted or that he even knew they were in the van (the same can be said for the MSM). The State asked the jury to infer Walker’s intent to distribute based on an assumption that the two individuals in the back of the van were “getting high”: They pick up two people and the two people are gett ing high in the back of the van. And who do you think is providing them with what they need to get high? That’s distribution. That’s sel ling it. 5 RR 54. Given that the “hot to the touch” pipe wa s found in the rear of the van, it may have been a legitimate inference that one or bo th of these folks was smoking methamphetamine. But it is not legitimate to infer that this methamphetamine was provided by Walker (or Pierce for that matter). No ne of the bags of methamphetamine found in the van were open. It is just as possible that one of the individuals brought his (or her) own methamphetamin e. See Allen, 249 S.W.3d at 703 (“A jury may not reasonably infer an ultimate f act from meager circumstantial evidence, none more probable than another.”). And t here was no evidence that26

anybody in the van had been using the syringes to i nject methamphetamine at the time. 5 RR 21. The State asked the jury to infer Walker’s intent to distribute based on his statement that the pink methamphetamine was not act ually methamphetamine: “I know the pink stuff is not dope.” . . . How woul d he know that? How would he know the pink stuff is not dope? We’ll ge t back to that in a minute. . . . Now, back to my original question. . . . How do you know that? Unless you’ve touched it, taken it, weighed it, checked it, analyzed it, how would know that unless you were in volved with it. 5 RR 38, 40. It was a legitimate inference that Wa lker was aware of the pink substance that ultimately tested positive for metha mphetamine. But as noted above in subsection (c) , to establish unlawful possession, the state must prove that the defendant knew that the object possessed was a cont rolled substance. Walker’s statement was actually evidence that he did not kno w the pink substance was a controlled substance. And just as important is the fact that the net weight of the pink substance was 5.64 grams. 4 RR 88, State Ex. 23. The State’s expert testified that this could have been a user quantity: State: When you say a large amount, what is it tha t’s a large amount as opposed to a small amount? Detective Mallow: A small amount was initially wha t was found. A small amount, showed me the bag, a larger amount, anything over f our, ten grams , you know, more than user quantities. 4 RR 95-96. Thus, based on the weight alone, this evidence did not provide a legitimate basis to infer an intent to distribute. See United States v. Meshack , 22527

F.3d 556, 569 (5th Cir. 2000) (“We agree that the a mount of cocaine involved could be consistent with personal use and, accordingly, i s insufficient in and of itself to prove an intent to distribute.”), amended on reh'g in part, 244 F.3d 367 (5th Cir. 2001).

It should also be noted that no firearm was found inside the van or on any of the occupants. 4 RR 38-39, 48-49, 69. No scales w ere found. And no currency was found in the van or on any of the occupants. 5 RR 21. The State tried to explain the absence of cash thusly: Mr. Parker brought up a point that there was no mon ey in the van. That’s true. There was no money. . . . Well, what if they re-upped ? They just got hold of some and they’re looking to s ell it and distribute it. They didn’t have money on them because they us ed it to buy the dope that’s in the van. And they’re parked at 309 Root Street, mobile drug van, people come in, get in the back, get high

. 5 RR 55. The State’s theory was utter speculation. “Evidence in a knowing possession of contraband case must amount to more t han mere conjecture.” Allen, 249 S.W.3d at 704. “Proof that amounts to only a s trong suspicion or mere probability of guilty is insufficient to sustain a conviction.” Id. ; United States v. Coppin, 1 Fed. Appx. 283, 289 (6th Cir. 2001) (unpublished) . (Conjecture and surmise regarding what a defendant may have intende d or known is insufficient to support a conviction.).28

In sum, there is no evidence that Walker construct ively possessed the methamphetamine that Pierce was secreting in her va gina. See United States v. Jones, 518 F.2d 64, 68 (9th Cir. 1975) (evidence insufficient as a matter of la w to establish beyond a reasonable doubt that defendant had knowledge of or control over heroin in vagina of companion); United States v. Cooper, No. 8:13-cr-187, 2013 WL 5741786, at *3 (M.D. Fla. Oct. 22, 2013) (unpublish ed) (“vagina smuggling” constituted actual possession). It could not be legitimately inferre d that he was aware of the 2.16 grams of methamphetamine found be tween the driver’s seat and the driver’s side door – he couldn’t have seen it. The same can be said for the “bag behind the driver’s seat”, the “Frisbee methampheta mine”, the syringes and the MSM. The methamphetamine in Walker’s pocket and th e pink methamphetamine were only user quantities. Therefore, the evidence was insufficient to sustain Walker’s conviction as a principal.29

2. The evidence was not sufficient to sustain Walk er’s possession with intent conviction under a party theory.

(a) Evidentiary requirements for conviction as a party The Penal Code lists four ways that a person can b e criminally responsible for the conduct of another. Tex. Penal Code Ann. § 7.02 (West 2011). The trial court’s jury instructions in the instant case only mentione d one: A person is criminally responsible for an offense c ommitted by the conduct of another if . . . acting with intent to p romote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offe nse.

CR 31; Tex. Penal Code Ann. § 7.02 (a)(2) (West 20 11). A jury is not authorized to convict a defendant as a party under a theory no t set forth in the jury charge. Wooden v. State, 101 S.W.3d 542, 548-49 (Tex.App. – Fort Worth 2003, no pet,). To establish party liability, it must be proven tha t the accused harbored the specific intent to promote or assist the commission of the c harged offense. See Pesina v. State, 949 S.W.2d 374, 382 (Tex.App.—San Antonio 1997, no pet.). The evidence must show that, at the time of the offense, the par ties were acting together, each contributing to their common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986) (en banc). Intent may be inferred from acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).30

In determining whether a defendant participated as a party in the commission of an offense, the jury may look to events that occurred before, during, or after the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh’g).

(b) Aiding and abetting under federal law Criminal liability as a party to an offense under Texas law is synonymous with criminal liability as an aider and abettor under fe deral law. Marable v. State, 85 S.W.3d 287, 292 & n. 15 (Tex. Crim. App. 2002). Th erefore federal aiding and abetting cases can instructive regarding party liab ility as it relates to possession with intent to distribute. A defendant may be convicted of aiding and abetting if he associates with criminal activity, participates in it, and helps it succeed. United States v. Delagarza-Villarreal, 141 F.3d 113, 140 (5th Cir. 1997). “[T]o aid and abet, a defendant must share in the intent to commi t the offense as well as play an active role in its commission. . . . [H]e must have aided and abetted each material element of the offense.” United States v. Lombardi, 138 F.3d 559, 561 (5th Cir. 1998). A conviction for aiding and abetting posses sion with intent to distribute requires proof that the defendant aided and abetted in both the possession and distribution of the drug. United States v. Natel, 812 F.2d 937, 941 (5th Cir. 1987); see United States v. Delagarza-Villarreal, 141 F.3d 113, 140 (5th Cir. 1997)31

(evidence supported finding that defendant aided an d abetted intention to distribute but not possession); United States v. Morrison, 220 Fed. Appx. 389, 395 (6th Cir. 2007) (unpublished) (While defendant’s comments est ablished he knew something illegal was involved with vehicle, they did not est ablish his knowledge of hidden drugs).

(c) Pierce as a principal For a defendant to be guilty as a party, there mus t first be evidence of the guilt of another person as the primary actor. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App.1992). The indictment alleges Pier ce as the primary actor. CR 4. As noted above (subsection 1 (j)(ix) ), it could legitimately be inferred that Pierce possessed the large quantity “bag behind the driver ’s seat”, the large quantity “Frisbee methamphetamine.” Obviously it can be inf erred that she possessed the methamphetamine found in her vagina. Assuming arguendo that this was sufficient to establish that Pierce possessed this methampheta mine with an intent to distribute it, what is there that suggests that Walker assiste d in this possession or intent?

(d) Walker’s conduct before the arrest There is nothing in the record that establishes Wa lker’s conduct vis-à-vis32

Pierce prior to the arrest other than they were tog ether in a van. Nothing in the record establishes that Walker had a possessory interest i n the van sufficient to infer that he had provided it to Pierce. Cf. Adams v. State, No. 05-92-02268-CR, 1994 WL 370117, at *2 (Tex.App.—Dallas July 14, 1994, no pe t.) (unpublished) (fact that car in which cocaine was delivered was registered in ap pellant’s name was evidence of party liability). Nothing in the record suggests t hat he had anything to do with placing the large quantities of methamphetamine in the van or that he ever drove the

van. Cf. United States v. Savinoch, 845 F.2d 834, 838 (9th Cir. 1988) (rational jury could find that defendant aided and abetted her hus band’s criminal venture by accompanying him on the transaction, and sought to make it succeed by driving the car and carrying the cocaine to the drop site).

(e) Walker’s conduct at the time of the arrest Nothing that Walker said or did at the time of his arrest potentially implicated him in Pierce’s possession of the large quantities of methamphetamine other than the fact that it was present in the van. But that is not enough. See United States v. Morrison, 220 Fed. Appx. 389, 396-98 (6th Cir. 2007) (unpubli shed) (no inference of aiding and abetting intent to distribute based o n existence of large quantity of drugs absent a showing that the defendant had knowl edge of the drugs). In United33

States v. Longoria, 569 F.2d 422 (5th Cir. 1978), wherein appellant was convicted of possession with intent to distribute marijuana, the facts were as follows. Appellant caught a ride with Delgado, the owner of the vehicle, from Edinburg, Texas to Austin, Texas, Delgado stating he “had bus iness in Austin.” Id. at 424. Shortly before reaching a border checkpoint, Delgad o informed appellant that there was marijuana in the car, handed her $300 and told her to “keep calm.” At the border check point, one of the agents smelled marijuana, a nd after obtaining Delgado’s consent to search the vehicle, found 176 pounds of marijuana inside suitcases located in the trunk. An additional search “revealed trace of marijuana in appellant’s pocket book; however, there is no contention that these tr aces were in any way related to the marijuana found in the trunk.” Id. The Fifth Circuit reversed the conviction: [T]here is insufficient evidence to show that appel lant shared Delgado's intent to distribute the marijuana, and that there is almost no evidence to establish affirmative conduct designed to aid th e distribution. Her acceptance of the $300, and her silence at the chec kpoint perhaps establish her desire that the unknown quantity of m arijuana escape detection, and that she and Delgado arrive safely i n Austin. That evidence does not, however, establish in any way he r intention to associate herself with and participate in the distr ibution of marijuana. Id. at 425.

(f) Walker’s conduct after the arrest34

Killeen Detective Mallow interviewed Walker at som e point after the arrest. State Ex. 24. Walker’s responses to the questions put to him are for the most part incomprehensible or he doesn’t respond. He made no mention of any conversations he had with Pierce. See United States v. Sliwo, 620 F.3d 630, 633, 638 (6th Cir. 2010) (Government failed to prove aiding and abetti ng possession with intent to distribute marijuana, in part because “[t]he govern ment failed to provide any evidence of conversations between Defendant and his alleged co-conspirators.”).

(g) Summary Nothing Walker said or did prior to the arrest, dur ing the arrest, or after the arrest established that he was acting to assist Pie rce in any possession with intent to distribute. He was simply present. But mere prese nce at the scene of an offense or even knowledge that an offense is being committed d oes not make one a party to an offense. Ahrens v. State, 43 S.W.3d 630, 634 (Tex.App.—Houston [1st Dist.] 20 01, pet. ref’d). The evidence was insufficient to sust ain Walker’s conviction under a party theory. Prayer for Relief

If the evidence is insufficient to sustain the cha rged offense but is sufficient to support a lesser-included offense, the judgment should be reformed to reflect the35

lesser-included conviction. Thornton v. State, 425 S.W.3d 289, 307 (Tex. Crim. App. 2014). The parties agreed that the evidence w as sufficient to support a jury instruction on the lesser included offense for poss ession of methamphetamine under one gram based on the 0.28 grams found in Walker’s pocket. 5 RR 24-26; CR 36. Because the evidence was insufficient to support Wa lker’s conviction for the charged offense, he requests that this Court vacate his sentence, and remand the cause back to the trial court to modify the judgmen t to reflect a conviction for the lesser included offense of simple possession, and f or re-sentencing.

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 Appellant36 Certificate of Service
This is to certify that a true and correct copy of the above and foregoing Appellant’s Brief has this day been mailed to the o ffice of Mr. Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513. SIGNED this 12th day of January, 2015.

/s/ John A. Kuchera John A. Kuchera, Attorney for Shawn Michael Walker37 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 8,151 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: January 12, 2015