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COURT OF APPEALS NO. 02-17-00174-CR

TRIAL COURT NO. 2016-0197M-CR

IN THE COURT OF APPEALS 

FOR THE SECOND DISTRICT OF TEXAS 

REBECCA PLUMLEE, APPELLANT

vs. 

THE STATE OF TEXAS, APPELLEE

BRIEF OF APPELLEE THE STATE OF TEXAS 

APPEAL FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY, TEXAS, 

THE HON. JACK A. MCGAUGHEY, PRESIDING

Casey Polhemus 

District Attorney 

State Bar No. 24077936 

97th 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

CLERK

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 12/21/2017 3:33:29 PM DEBRA SPISAK Clerk
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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.” .........................................................................................13

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

CERTIFICATE OF COMPLIANCE ..................................................................20
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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)..........................12
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NO. 02-17-00174-CR

IN THE COURT OF APPEALS

FOR THE SECOND DISTRICT OF TEXAS

REBECCA PLUMLEE, Appellant

vs.

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 97th 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 doors 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:” their eyes were bloodshot, and they weren’t acting right.5

Breeding also noticed that Appellant was acting out of sorts.

6

Eventually, another 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 with the Bowie Police Department arrived, he 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 male suspects, and he did not know if one of the three 

had another concealed weapon.

10 When asked, Appellant gave Officer Stone verbal 

consent to search her person.11 Appellant was in possession of her purse when she 

consented to the search.12 Appellant never withdrew her consent when Officer Stone 

began to search her purse.13 Furthermore, no objection was lodged at trial to the 

 

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

holds methamphetamine in a zipper-pocket of Appellant’s purse.15 Officer Stone 

also found a Halls cough drop wrapper that appeared to 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 it is also a 

common excuse for a suspect to say “That’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 group 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 signs 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.
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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 bizarre story about how she was kicked 

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 to 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 methamphetamine was 

found was her purse, but, she claimed that she had been separated from her purse at 

the party and denied any knowledge 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.
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The State impeached Appellant’s credibility with her previous felony 

convictions for possession of a controlled substance, fraud, and obtaining a 

controlled 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 about 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 methamphetamine; rather, 

once the State proved methamphetamine possession on a specific date, then it 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.
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penalty group when no specific group had been alleged, Appellant’s first point 

should be overruled.

While not required, there is sufficient evidence that methamphetamine was a 

penalty group 1 substance at the time of Appellant’s arrest. The record is clear that 

Officer Stone placed Appellant under arrest for possession of a controlled substance 

in penalty group 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 additionally 

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 that 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.
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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 established 

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 rejected 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 when 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 possession. 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, 
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by their guilty verdict, the jury clearly rejected 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 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.

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.
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filed any legal objection to the indictment and has, therefore, waived any complaint 

about the 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 

fulfilled 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 

methamphetamine; 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. 
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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 Appellant 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 clear 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.
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of July 8, 2014.

41 Todsen additionally testified that methamphetamine is a controlled 

substance in penalty group 1.

42

To reach 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 concerning 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 speaking 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 Viewing the testimony in the light 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 in 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 

methamphetamine 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 found 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 inferences 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 Appellant 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.
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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 consistent 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 their guilty verdict, the jury clearly rejected Appellant’s story about being 

separated from her 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

Appellant’s story about being separated from her purse and how she came to the 

Enterprise yard did not 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.
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fraud-related offenses.56 By 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 also sufficient to prove Appellant 

knowingly possessed the methamphetamine. Appellant admitted 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 methamphetamine, 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.
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being separated from her purse was far-fetched and self-serving.64 Thus, the 

evidence sufficiently proved that Appellant knowingly possessed the 

methamphetamine found in her purse.

CONCLUSION

The State did not allege that meth was in penalty group 1, so the State was not 

required 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 facts 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 drugs, 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. The context 

of his testimony shows that when he testified that methamphetamine was in penalty 

 

64 Jury Trial Tr. 3: 88-92.
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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 

testimony 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. Appellant 

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 factfinder, by their guilty verdict, clearly rejected Appellant’s story about how the purse 

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 point 

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 denied.
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Respectfully submitted,

__/s/ Casey Polhemus_____________

Casey Polhemus

97th District Attorney

State Bar No. 24077936

97th 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 8th Street, Suite 550D

Wichita Falls, Texas 76301

careyjensenlaw@gmail.com

__/s/ Casey Polhemus_____________

Casey Polhemus

97th District Attorney

CERTIFICATE OF COMPLIANCE

I certify that this document contains 3,556 words. The body text is in 14-point 

font, and the footnote text is in 12-point font.

__/s/ Casey Polhemus_____________

Casey Polhemus

97th District Attorney