1 C OURT OF A PPEALS N O . 02
- 17 -00174- CR T RIAL C OURT N O . 2016-0197M- CR IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS

REBECCA PLUMLEE , A PPELLANT

vs. THE STATE OF TEXAS, A PPELLEE

BRIEF OF APPELLEE THE STATE OF TEXAS

A PPEAL FROM THE 97 TH D ISTRICT C OURT OF M ONTAGUE C OUNTY , T EXAS ,

THE H ON . J ACK A. M C G AUGHEY , PRESIDING

Casey Polhemus District Attorney State Bar No. 24077936 97 th District Attorney ’s Office P.O. Box 55 Montague, Texas 76251 Tel. (940) 894-6211 Fax (940) 894-6203 Casey.Polhemus@co.montague.tx.us

NO ORAL ARGUMENT IS REQUESTED ACCEPTED 02-17-00174-CR SECOND COURT OF APPEALS

FORT WORTH, TEXAS 12/21/2017 3:33 PM DEBRA SPISAK CLERK2 TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................ ................................ ................... 3 STATEMENT REGARDING ORAL ARGUMENT ................................ ........... 4 STATEMENT OF FACTS ................................ ................................ ...................... 4 SUMMARY OF THE ARGUMENT ................................ ................................ ..... 8 ARGUMENT ................................ ................................ ................................ .......... 11 I. Even though the State did not allege and was not required to prove the penalty group of methamphetamine, the evidence is nevertheless sufficient that methamphetamine was a penalty group 1 substance at the time of Appellant’s arrest. ................................ ................................ ................................ .. 11 A. The State did not allege and was not required to prove the penalty group. Rather, once the State proved that meth was the substance possessed, it became the judge’s job to apply the law to the facts in the jury charge.

......................... 11 B. Officer Stone placed Appellant under arrest for possession of a controlled substance in penalty group 1 and noted the items seized were “methamphetamines.”

................................ ................................ ......................... 1 3 C. The forensic scientist’s testimony about the penalty group was connected to the offense date in this case.

................................ ................................ ................ 13 II. Viewed in the light most favorable to the verdict, the evidence sufficiently established Appellant knowingly possessed methamphetamine. .. 15 CONCLUSION ................................ ................................ ................................ ....... 18 PRAYER ................................ ................................ ................................ ................. 19 CERTIFICATE OF SERVICE ................................ ................................ ............ 20 CERTIF ICATE OF COMPLIANCE ................................ ................................ .. 203 INDEX OF AUTHORITIES Cases Doyle v. State, 631 S.W.2d 732,736 (Tex. Crim. App. 1982).

......................... 11, 12 Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

................................ .. 15 Jones v. State , 944 S.W.2d 642,647 (Tex. Crim. App. 1996).

................................ 16 Parker v. State , 192 S.W.3d 801,804 (Tex.App.

— Houston [1st Dist.] 2006, pet. ref’d).

................................ ................................ ................................ ............. 14, 17 Rodriguez v. State , 799 S.W.2d 301,303 (Tex. Crim. App. 1990)

. ......................... 124 NO. 02
- 17
- 00174
- CR IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
REBECCA PLUMLEE , Appellant

v s . THE STATE OF TEXAS, Appellee

BRIEF OF APPELLEE THE STATE OF TEXAS

To the Honorable Justices of the Second Court of Appeals:
Comes Now, The State of Texas (“State”), Appellee, and files this Brief of Appellee , respectfully requesting that this Court uphold the conviction and sentence
rendered in Cause No. 2016

- 0197M

- CR in the 97 th Judicial District Court of Montague County, Honorable Jack A. McGaughey , Judge Presiding.

STATEMENT REGARDING ORAL ARGUMENT The State does not request oral argument.

STATEMENT OF FACTS Mark Breeding arrived for work at the Enterprise truck yard in Bowie at 3:30

on the morning of July 8, 2014

. 1 Breeding had parked with his pickup facing an 18

- wheeler, and had left the d oors to his truck open. 2 Breeding was startled when he

saw Appellant , wearing only panties and her bra, and two men standing on the

1 Jury Trial Tr. 3: 17, May 31, 2017.
2 Jury Trial Tr. 3: 21.5

driver’s side of his truck. 3 The trio wanted to borrow Breeding’s truck to get water , and Breeding noticed that one of the three had a large Bowie knife. 4 Breeding
testified that he was scared because he was alone with the three , and they appeared to be “on something : ” t heir eyes were bloodshot, and they weren ’t acting right. 5 Breeding also noticed that Appella nt was acting out of sorts

. 6 Eventually, a nother driver showed up at the truck yard

. 7 They became argumentative when the other driver told the three to leave, so he called 911. 8 When Officer Cody Stone w ith the Bowie Police Department arrived, h e was concerned for his safety. 9 Officer Stone was advised by another officer that a large knife had
been taken off of one of the m ale suspects, and he did not know if one of th e three
had another concealed weapon

. 10 When asked, Appellant gave Officer Stone verba l consent to search her person. 11 Appellant was in possession of her purse w hen she
consented to the search. 12 Appellant never withdrew her consent when Officer St one began to search her purse. 13 Furthermore, no objection was lodged at trial to t he

3 Jury Trial Tr. 3: 22

- 23. 4 Jury Trial Tr. 3: 24

- 25. 5 Jury Trial Tr. 3: 25

- 26. 6 Id. 7 Id. 8 Jury Trial Tr. 3: 26

- 27. 9 Jury Trial Tr. 3: 33

- 40. 10 Jury Trial Tr. 3: 39

- 40. 11 Jury Trial Tr. 3: 41. 12 Id. 13 Jury Trial Tr. 3: 42.6

search of Appellant’s purse. 14 Officer Stone found a plastic baggie that commonly
holds methamphetamine in a zipper

- pock et of Appellant’s purse. 15 Officer Stone also found a Halls cough drop wrapper that appeared t o have possible narcotics in
it. 16 While Appellant denied that the drugs found in the purse were hers, she never denied that it was her purse

. 17 Officer Stone testified that it was common for an
offender who has something illegal to consent to a search , and that i t is also a

common excuse for a suspect to say “ T hat’s not mine!” when found in possession of an illegal substance. 18 After locating the suspected narcotics, Officer Stone placed Appellant under arrest for possession of a controlled substance in penalty gr oup 1. 19 When Appellant
was booked

- in, she had dark circles under her eyes, a glassy look, and dilated pupils , which Officer Stone identified as common s igns that someone has used methamphetamine

. 20 Additionally, Officer Stone’s notes on the packaging of the drugs indicated “two small packages of methamphetamines found in suspect’s purse.” 21 William Todsen, a forensic scientist with the DPS Crime Lab in Abilene,
testified that the items retrieved from Appellant’s purse contained 1.57 grams of

14 Jury Trial Tr. 3: 75. 15 Jury Trial Tr. 3: 45. 16 Jury Trial Tr. 3: 43. 17 Jury Trial Tr. 3: 45. 18 Id. 19 Jury Trial Tr. 3: 47. 20 Jury Trial Tr. 3: 51. 21 Jury Trial Tr. 3: 53; State’s Ex. 11.7

methamphetamine

. 22 Todsen also testified that methamphetamine is a controlled substance in penalty group 1

. 23 Todsen’s lab report reflected the offense date of July 8, 2014. 24 Appellant testified and offered up a biz arre story about how she was kic ked out of a party

. 25 Appellant could not really explain why she wound up at the Enterprise truck yard in the middle of the night. 26 She claimed she did not know much about the two men that she was with, but that she had just followed them when she was trying t o get to her step

- mother’s house after being kicked out

. 27 Appellant admitted other people at the party were using drugs, but she claimed she had not been using drugs

. 28 Appellant admitted the purse where the methamphetamin e was f ound was her purse, but , she claimed that she had been separated from her purse at the party and denied any kno wledge of the methamphetamine that was later found in the purse by Officer Stone

. 29

22 Jury Trial Tr. 3: 75. 23 Jury Trial Tr. 3: 77. 24 Jury Trial Tr. 3: 78

- 80; State’s Ex. 15. 25 Jury Trial Tr. 3: 88

- 89. 26 Jury Trial Tr. 3: 94

- 96. 27 Jury Trial Tr. 3: 96. 28 Jury Trial Tr. 3: 95. 29 Jury Trial Tr. 3: 89

- 90 , 105

.8

The State impeached Appellant’s credibility with her previous felony convictions for possession of a controlled substance, fraud, and obtaining a

cont rolled substance by fraud. 30

SUMMARY OF THE ARGUMENT Appellant confuses the judge’s job with the State’s job: it is the judge who must apply the law to the facts and properly charge the jury. In the indictment, the State never alleged (nor was required to allege) that methamphetamine was in penalty group 1. Appellant never filed any legal objection to the indictment and has, therefore, waived any complaint ab out the indictment. The State proved that Appellant possessed methamphetamine on July 8, 2014, as alleged in the indictment. It was the judge’s job to properly charge the jury on the law concerning possession of methamphetamine on July 8, 2014. The judge fulfilled his job and properly applied the law to the facts in the court’s charge. Thus, the State was not required to prove the specific penalty group for meth amphetamine ; rather, once the State proved meth amphetamine possession on a specific date, then i t was the judge’s role to apply the law to the facts for the jury. Appellant confuses these roles when she argues the State had a duty to prove the specific penalty group when
it was not alleged in the indictment. As the State had no legal duty to prove up the

30 Jury Trial Tr. 3: 101

- 04; State’s Ex. 16, 17, 18.9

penalty group when no specific group had been alleged, Appellant’s first point
should be overruled.
W hile not required, there is sufficient evidence that methamphetamine was a penalty group 1 substance at the time of Appellant’s arrest. T he rec ord is clear that Officer Stone placed Appellant under arrest for possession of a controlled substance in penalty g roup 1. Officer Stone noted on the packaging that the items contained “two small packages of methamphetamines found in suspect’s purse.” William Todsen, the forensic scientist, testified that the items contained methamphetamine. Todsen’s lab report, which was admitted, reflected the items contained 1.57 grams
of methamphetamine , and noted an offense date of July 8, 2014. Todsen additionall y testified that methamphetamine is a controlled substance in penalty group 1. Appellant advances a construction that takes the forensic scientist’s testimony completely out of context and argues that his “answers were entirely in the present tense” so th at he only established methamphetamine was in penalty group 1 the day he testified, but was silent as to the time of the arrest. This artificial construction ignores the fact that Todsen’s report notes the offense date of July 8, 2014. It also ignores the context of Todsen’s testimony: he was called to testify about the methamphetamine he tested that was possessed by Appellant on July 8, 2014.
Common sense dictates that Todsen’s testimony is logically associated with the offense date and lab report in this case.10

Both the testimony of Officer Stone and Mr. Todsen, therefore, provided
sufficient evidence that the methamphetamine found in Appellant’s purse was in penalty group 1. Viewed in the light most favorable to the verdict, the evidence also establishe d Appellant knowingly possessed the methamphetamine : Appellant admitted the purse containing the methamphetamine was hers, Appellant exhibited symptoms of being high on drugs at the time she possessed the purse with the methamphetamine , and the jury reject ed Appellant’s story and explanation for how the methamphetamine could have come to be in her purse. First, the purse containing the methamphetamine was under the exclusive possession and control of Appellant whe n Officer Stone found the methamphetamine

. Second, on the stand, Appellant conceded the purse where the methamphetamine was found was her purse. Appellant’s own testimony established her custody of the purse that contained the methamphetamine

. So, this was not a
situation where methamphetamine is found in a common room where multiple people had access; rather, the methamphetamine was found in the intimate, closed container of Appellant’s purse. A Texas appellate court has found similar facts to be legally sufficient to establish knowing possess ion. Third, the jury, as the fact

- finder, is the exclusive judge of the credibility of the witnesses. While the jury could have accepted Appellant’s story about how she was separated from her purse at the party,11

by their guilty verdict, the jury clearly re jected Appellant’s story about being separated from her purse earlier in the evening. Finally, Appellant exhibited signs of being under the influence of a controlled substance, like methamphetamine , at the time she was found in possession of the purse with the methamphetamine . Appellant conceded she had been at a party where people were doing drugs. These facts further supported the jury’s conclusion that Appellant was knowingly in possession of methamphetamine

. ARGUMENT

I. Even though the State did not al lege and was not required to prove the penalty group of methamphetamine, t he e vidence is nevertheless sufficient that methamphetamine was a penalty group 1 substance at the time of Appellant’s arrest.
A. The State did not allege and was not required to prove the penalty group. Rather, once the State proved that meth was the substance possessed, it became the judge’s job to apply the law to the facts in the jury charge. Appellant confuses the judge’s job with the State’s job: it is the judge who

must apply the law to the facts and properly charge the jury. 31 In the indictment, the State never alleged that methamphetamine was in penalty group 1. 32 Appellant never

31 See Doyle v. State, 631 S.W.2d 732,736 (Tex. Crim. App. 1982). 32 Jury Trial Tr. 2: 88, May 30, 2017.12

filed any legal objection to the indictment and has, therefore, waived any complaint
about t he indictment. 33 The State proved that Appellant possessed methamphetamine on July 8, 2014, as alleged in the indictment. 34 It was the judge’s job to properly charge the jury on the law concerning possession of methamphetamine on July 8, 2014. 35 The judge
fu lfilled his job and properly applied the law to the facts in the court’s charge. 36 Thus, the State was not required to prove the specific penalty group for
meth amphetamine ; rather, once the State proved that Appellant possessed methamphetamine on a certain date, then it was the judge’s role to apply the law to the facts for the jury in the court’s charge. Appellant confuses these roles when she argues the State had a duty to prove the specific penalty group when it was not alleged in the indictment, arguing that the State must prove the law on the date of the offense. Rather, the State must prove the facts, and then the judge must charge the jury on the law on that date. 37 As the State had no legal duty to prove up the penalty group when no specific group had been alleged, Appellant’s first point
should be overruled.

33 Jury Trial Tr. 2 : 5; see, e.g., Rodriguez v. State , 799 S.W.2d 301,303 (Tex. Crim. App. 1990) (holding that a defendant waives any complaint about an indictment if he fails to object before the date of trial). 34 Jury Trial Tr. 3: 45

- 53; 75

- 80; 91

- 92; 105, May 31, 2017. 35 See Doyle, 631 S.W.2d at 736. 36 Jury Trial Tr. 3: 111

- 117. 37 See Doyle, 631 S.W.2d at 736.13

B. Officer Stone placed Appellant under arrest for possession of a controlled substance in penalty group 1 and noted the items seized were “ methamphetamines .” Officer Stone testified that he placed Appellant under arrest for possession of a controlled substance in penalty group 1. 38 When Officer Stone packaged the items he found in Appellant’s purse, he wrote “two small packages of methamphetamine found in suspect’ s purse.” 39 From Officer Stone’s notations, it was clear to the jury that the penalty group 1 drug for which he arrested Ap pellant was methamphetamine

. C. The forensic scientist’s testimony about the penalty group was connected to the offense date in this case . In viewing the forensic scientist’s testimony in context and in the light most favorable to the verdict, it is cle ar that his testimony concerning methamphetamine being in penalty group 1 was referring back to the offense date listed in his lab report.
Todsen testified that the items Officer Stone retrieved from Appellant’s purse
contained methamphetamine

. 40 Todsen’s lab report, which was admitted, reflected
that the items contained 1.57 grams of methamphetamine , and noted an offense date

38 Jury Trial Tr. 3: 47

- 48. 39 Jury Trial Tr. 3: 53; State’s Ex. 11. 40 Jury Trial Tr. 3: 75.14

of July 8, 2014

. 41 Todsen additionally testified that meth amphetamine is a controlled substance in penalty g roup 1

. 42
To re ach the conclusion that Todsen was specifically testifying in the present
tense that methamphetamine is currently in penalty group 1 ignores the entire context of Todsen’s testimony. The full context of his testimony makes clear that he was testifying conc erning the methamphetamine he tested in this case and prepared a lab report to reflect the results of that testing

. 43 The lab report clearly states the offense
date of July 8, 2014. 44 Therefore, the full context of Todsen’s testimony makes clear
that when he said methamphetamine was in penalty group 1, he was sp eaking about
the methamphetamine he tested

. 45 Todsen was not testifying about methamphetamine in general; rather, he was testifying concerning the specific methamphetamine he tested that was obtained from Appellant on July 8, 2014

. 46 In addition to ignoring the full context of Todsen’s testimony, Appellant also forgets that the testimony must be viewed in the light most favorable to the verdict for a sufficiency review. 47 V iewing the testimony in the li gh t most favorable to the

41 Jury Trial Tr. 3: 78

- 80; State’s Ex. 15. 42 Jury Trial Tr. 3: 77. 43 Jury Trial Tr. 3: 59

- 80. 44 Jury Trial Tr. 3: 78

- 80; State’s Ex. 15. 45 Jury Trial Tr. 3: 59

- 80; State’s Ex. 15. 46 Jury Trial Tr. 3: 59

- 80; State’s Ex. 15. 47 See, e.g., Parker v. State , 192 S.W.3d 801,804 (Tex.App.

— Houston [1st Dist.] 2006, pet. ref’d).15

verdict , Todsen’s testimony establishes methamphetamine was a penalty group 1
controlled substance on the date of the offense as listed i n his lab report

. 48 In considering both Officer Stone’s testimony that Appellant was arrested for a penalty group 1 offense and his notes that the substance was methamphetamine and Todsen’s testimony that clearly related to the methamphetamine seized on the offense date in his lab report, the record contains sufficient evidence that methamphetamin e on the offense date was in penalty group 1.

II. Viewed in the light most favorable to the verdict, the evidence sufficiently established Appellant knowingly possessed methamphetamine . First, Appellant had to concede on the stand that the purse where the methamphetamine was f ound was her purse. 49 She also admitted that she was in possession of the purse when Officer Stone found the methamphetamine

. 50 The jury was free to make reasonable i nferences from the evidence. 51 The fact that purses are personal and intimate containers would be a reasonable inference for the jury. Mr. Breeding testified that the three individuals, including Appellant, appeared like they were “on something ” and that A ppellant was not acting right. 52

48 Jury Trial Tr. 3: 59

- 80; State’s Ex. 15. 49 Jury Trial Tr. 3: 91

- 92. 50 Jury Trial Tr. 3: 105. 51 See Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
52 Jury Trial Tr. 3: 26.16

Additionally, Officer Stone testified that when he arrested Appellant, he saw signs
she was on methamphetamine : she had dark circles under her eyes, a glassy look, and dilated pupils. 53 The fact that Appellant had symptoms c onsistent with methamphetamine use is evidence that tends to connect her to the methamphetamine in her purse. Appellant also had to admit that when she was arrested, she had just come from a party where drugs were being used. The jury, as the determiner of credibility, was free to reject Appellant’s claim that she had not used drugs at the party. Thus, her admission about where she was coming from immediately before the arrest
further tends to connect her to the methamphetamine found in her purse. By th eir guilty verdict, the jury clearly rejected Appellant’s story about being separated from he r purse earlier in the evening. The jury alone is the exclusive judge of the credibility of a witness and the weight to be given that witness’s testimony. 54 Appella nt’s story about being separated from her purse and how she came to the Enterprise yard did n ot make any sense. 55 Additionally, the State impeached Appellant’s credibility with three prior felony convictions, two of which were for

53 Jury Trial Tr. 3: 50; State’s Ex. 9. 54 See, e.g., Jones v. State , 944 S.W.2d 642,647 (Tex. Crim. App. 1996). 55 Jury Trial Tr. 3: 88

- 92.17

fraud

- related offenses. 56 B y its verdict, the jury clearly rejected Appellant’s bizarre story about being separated from her purse. Finally, in Parker v. State , the First District Court of Appeals examined a similar set of facts and held that the evidence was sufficient for knowing possession for drugs found in an offender’s purse. 57 In Parker, the cocaine was found in the trunk of the defendant’s car in her purse. 58 The defendant admitted that the purse was hers, but denied knowing how the cocaine came to be in her purse. 59 The First District Court of Appeals found that this evidence was legally sufficient to link the
defendant to the cocaine found in her purse. 60 Applying the Parker analysis to these facts reveals this evidence, viewed in the light most favorable to the verdict, is al so sufficient to prove Appellant knowingly possessed the methamphetamine

. Appellant admitte d it was her purse. 61 Appellant admitted she possessed the purse at the time the methamphetamine was
found. 62 Appellant demonstrated symptoms of being high on methamph etamine , and had just come from a party where drugs were used. 63 And, Appellant’s story about

56 Jury Trial Tr. 3: 101

- 04; State’s Ex. 16, 17, 18. 57 Parker , 192 S.W.3d at 801. 58 Id. 59 Id. at 805. 60 Id. 61 Jury Trial Tr. 3: 91

- 92. 62 Jury Trial Tr. 3: 105. 63 Jury Trial Tr. 3: 88; 3: 51.18

being separated from her purse was far

- fetched and self

- serving. 64 Thus, the evidence sufficiently proved that Appellant knowingly possessed the methamphetamine fou nd in her purse. CONCLUSION The State did not allege that meth was in penalty group 1, so the State was not requi red to prove the penalty group. Rather, once the State proved that Appellant possessed meth on a date certain, it was the judge’s responsibility to apply the law
to those fa cts for the jury in the charge. The trial judge fulfilled his duty and properly charged the jury. Thus, Appellant has confused the role of the State and the judge in claiming the State had some duty to prove what the law was. Since this was the trial judge’s responsibility and since the trial judge properly applied the law to the facts in his charge, Appellant’s first point should be overruled. Regardless, the State sufficiently proved that methamphetamine is a penalty group 1 substance. Officer Stone testified that he arrested Appellant for possession of a controlled substance in penalty group 1. When packaging the d rugs, Officer
Stone noted the substance was methamphetamine . Further, the forensic scientist was called to testify about the methamphetamine that he tested for this case. His lab report, which was admitted, referenced the offense date of July 8, 2014. T he context of his testimony shows that when he testified that methamphetamine was in penalty

64 Jury Trial Tr. 3: 88

- 92.19

group 1, this testimony referred to the methamphetamine he tested that was seized on July 8, 2014. The hyper

- narrow reading that Appellant advances of Todsen’s

te stimony must be rejected. Rather, in viewing both Officer Stone and Todsen’s testimony in the light most favorable to the verdict, there is sufficient evidence that methamphetamine was in penalty group 1 on the date of the offense. Thus, Appellant’s first point should be overruled. Additionally, the methamphetamine was found in Appellant’s purse which she possessed immediately before it was searched by Officer Stone. Appellant admitted it was her purse. Purses are intimate and personal containers. Appel lant also had symptoms of being under the influence of methamphetamine , and admitted she had just come from a party where drugs were used. Further, the jury, as the fact

finder, by their guilty verdict, clearly rejected Appellant’s story about how the pur se was out of her custody earlier that night. Finally, the First District Court of Appeals,
in Parker v. State , has found that drugs found in an offender’s purse were sufficient evidence to link the offender to the drugs. Therefore, Appellant’s second po int should be overruled, and the judgment of the trial court should be affirmed.
PRAYER WHEREFORE, PREMISES CONSIDERED, the State prays that the Judgment of Conviction entered by the Trial Court in this case be affirmed and that Appellant’s appeal be deni ed.20 Respectfully submitted,

__ /s/ Casey Polhemus

_____ ________ Casey Polhemus 97 th District Attorney State Bar No. 24077936 97 th District Attorney P.O. Box 55 Montague, Texas 76251 Tel. (940) 894

- 6211 Fax (940) 894

- 6203

CERTIFICATE OF SERVICE This statement certifies that a true and correct copy of the foregoing
instrument has been e - mailed December 21, 2017 , as follows: Carey Jensen 813 8 th Street, Suite 550D Wichita Falls, Texas 76301 careyjensenlaw@gmail.com

__ /s/ Casey Polhemus

_____ ________ Casey Polhemus 97 th District Attorney

CERTIFICATE OF COMPLIANCE I certify that this document contains 3, 5 56 words. The body text is in 14

- point font, and the footnote text is in 12

- point font.

__ /s/ Casey Polhemus

_____ ________ Casey Polhemus 97 th District Attorney