                                                                                       ACCEPTED
                                                                                   06-15-00079-CR
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                              8/12/2015 3:52:03 PM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK


              IN THE COURT OF APPEALS FOR THE
           SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                               FILED IN
                                                        6th COURT OF APPEALS
BOBBY JOE EVENS,                §                         TEXARKANA, TEXAS
   APPELLANT                    §                       8/12/2015 3:52:03 PM
                                §                           DEBBIE AUTREY
                                                                Clerk
    v.                          §             Nos. 06-15-00079-CR
                                §
                                §
THE STATE OF TEXAS,             §
   APPELLEE                     §




                         STATE'S BRIEF



              FROM THE 196TH JUDICIAL DISTRICT COURT
                      HUNT COUNTY, TEXAS

                   TRIAL CAUSE NUMBER 27,388
         THE HONORABLE J. ANDREW BENCH, JUDGE PRESIDING



                                    NOBLE DAN WALKER, JR.
                                    District Attorney
                                    Hunt County, Texas

                                    KELI M. AIKEN
                                    First Assistant District Attorney
                                    P. 0. Box 441
                                    4111 Floor Hunt County Courthouse
                                    Greenville, TX 75403
                                    kaiken@huntcounty .net
                                    (903) 408-4180
NO ORAL ARGUMENT                    FAX (903) 408-4296
REQUESTED                           State Bar No. 24043442
                                            TABLE OF CONTENTS


Table of Contents ........................................................................................................... 2

Index of Authorities ................................................................................................... 3-4

Statetnent of the Case ................................................................................................. 5

Issues Presented .................................................................................................... 7-22

    1. Even if the Appellant was entitled to an accomplice witness insttuction, the
       error was harmless because overwhelming corroborating evidence showed
       proof of Appellant's guilt beyond a reasonable doubt.. ............................... 7-15

   2. The evidence was legally sufficient to prove Appellant guilty of Manufacture I
      Delivery of Cocaine as alleged in the indictment. ................................... 15-22

Prayer ........................................................................................................................ 23

Certificate of Service ................................................................................................ 24

Certificate of Compliance with Rule 9.4 .................................................................. 24




                                                                                                                                2
                                       INDEX OF AUTHORITIES
STATE CASES:


Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) .................................... 6

Chambers v. State, 711 S.W.2d 240,245-47 (Tex. Crim. App. 1986) .............. 16-17

Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996) ............................... 16

Cocke v. State, 201 S. W.3d 744, 748 (Tex. Crim. App. 2006) ................................. 6

Dewbeny v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), ce1i. denied, 529 U.S.
1131 (2000) ............................................................................................................. 16

Fernandezv. State, 805 S.W.2d451, (Tex. Crim. App. 1991) ......................... 16-17

Herron v. State, 86 S.W.3d 621,631 (Tex. Crim. App. 2002); ............................... 6

Hines v. State, 978 S.W.2d 169, 172 (Tex. App.-Texarkana, no pet.) .................. 16

Johnson v. State, 23 W.W.3d 1, 7 (Tex. CrimApp. 2002) ................................. 15-16

Jones v. State, 195 S.W.3d 279, 290 (Tex. App.-Ft. Wmih 2006, pet. ref d) ....... 6

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) ......................... 16

Smith v. State, 332 S. W.3d 425, 439 (Tex. Crim. App. 2011) .................................. 6

Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) ......................... 16

Watson v. State, 204 S.W.3d 404,415 (Tex. Crim. App. 2006) .............................. 16

STATE STATUTES:

TEX. C. CRIM. PRO. ART. 38.14 (Vernon 2015) ....................................................... 6

TEX. PEN. C.§ 1.07(A)(39) (VERNON 2015) ............................................................. 17

TEX. PEN. C.§ 6.01(B) (VERNON 2015) .................................................................... 17

                                                                                                                          3
TEX. CONT. SUBST. ACT§ 481.112 (VERNON 2015) ................................................ 17




                                                                                              4
                IN THE COURT OF APPEALS FOR THE
             SIXTH DISTRICT OF TEXAS AT TEXARKANA

BOBBY JOE EVENS,                       §
   APPELLANT                           §
                                       §
      v.                               §           Nos. 06-15-00079-CR
                                       §
                                       §
THE STATE OF TEXAS,                    §
   APPELLEE                            §




                              STATE'S BRIEF




TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the State of Texas, Appellee, in this appeal from Cause No.
27,388 in the I 96th Judicial District Comi in and for Hunt County, Texas,
Honorable J. Andrew Bench, Presiding, now before the Sixth District Comi of
Appeals, and respectfully submits this its brief to the Comi in suppmi of the
judgment of sentence in the court below.




                                                                          5
                SUMMARY OF THE STATE'S ARGUMENT


      Even if the trial court should have submitted an accomplice witness

insttuction, failure to do so did not result in egregious harm where Appellant

admitted to every element of the offense, two officers observed the dtug

transaction, and two additional officers searched both Appellant and Smith and

recovered the money and cocaine. The reliable and credible non accomplice

witness testimony and evidence in this case was convincing and clearly showed

Appellant's guilt as well as tended to connect him to the offense.

      Fmihermore, each and every required element of the offense of

Manufacture I Delivery of a Controlled Substance was proven beyond a

reasonable doubt. The evidence was legally sufficient and suppmied the jury's

verdict.

     Appellant's arguments are overcome by the evidence showing his clear

guilt in this matter, and his conviction should be affirmed.




                                                                                 6
            STATE'S RESPONSE TO POINTS OF ERROR ONE

             Even if the Appellant was entitled to an accomplice
             witness instruction, the error was harmless because
             overwhelming corroborating evidence showed proof
             of Appellant's guilt beyond a reasonable doubt.

                             Argument and Authorities

      An accomplice witness at law is one who can be charged with the same

 offense as the defendant or a related lesser-included offense. Cocke v. State, 201

 S.W.3d 744, 748 (Tex. Crim. App. 2006). When a witness is an accomplice as a

 matter of law, the trial comi is required to submit an miicle 3 8.14 inst1uction to

 the jury. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); TEX.

 CODE CRIM. PRO. ART. 38.14 (Ve1non 2015). If a required accomplice witness

 inst1uction is omitted, and Appellant did not object to the charge or request

 submission of the inst1uction, then the appellate comi looks at the record to

 determine if the error caused egregious hann. Herron v. State, 86 S.W.3d 621,

 631 (Tex. Crim. App. 2002); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh'g).

      Under the egregious harm standard, the omission of an accomplice
      witness inst1uction is generally harmless unless the corroborating
      (non-accomplice) evidence is 'so unconvincing in fact as to render
      the State's overall case for conviction clearly and significantly less
      persuasive.

Jones v. State, 195 S.W.3d 279, 290 (Tex. App.-Ft. Wmih 2006, pet. ref d);

Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
                                                                                   7
        In determining the sufficiency of corroborating evidence, the court

eliminates the testimony of the accomplice witness and examines all other

evidence and testimony looking for the reliability and believability as well as the

tendency to connect Appellant to the crime. Hall v. State, 161 S.W.3d 142, 149-

150 (Tex. App.-Texarkana 2005, pet. ref' d).

      A. Appellant admitted his guilt to this crime as part of his prior
         testimony in a federal case.

      There is no reason to doubt the reliability or believability of Appellant's

prior testimony that admitted to the elements of this crime. The ce1iified

transcript was published to the jury. SE22. Fmihermore, the transcript tends to

connect Appellant to this offense in that on May 21, 2013 in a co-conspirators

federal trial, Appellant testified:

      1.) his most recent employment included roofing and selling d1ugs;

      2.) he was distributing drugs in Hunt County, Greenville, Texas;

      3.) he sold crack cocaine;

      4.) he explained how 3.5 grams was a typical sell but he also sold in 7 gram
      amounts and called the 7 gram sell a "Vick;"

      5.) he delivered crack cocaine to customers in Greenville at convenience
      stores in town;

      6.) he was stopped after meeting with Robert Lewis Smith and had over
      $1,000.00 seized fi·om him;

      7.) that day he had met with Smith (whom he calls Emory) at the store;

                                                                                    8
      8.) he identified a photo of Smith and said he calls him Emory because
      Smith lives in Emory, Texas;

      9.) he also said he was talking about drug sales from February 2010
      through September 2011;

      10.)   he identified his house on Pepperport street;

      11.) he identified his truck that he used to deliver drugs on several
      occasiOns;

 SE22. Appellant implicates himself as a drug dealer who sold cocaine to Smith

 in up to 7 gram amounts during the timefi·ame to include November 9, 2010 at

various convenience stores in Greenville, Hunt County, Texas while driving his

truck. I d. A reasonable inference from this testimony shows that Appellant

 admitted to every element of this offense in his prior federal testimony.

      B. Inv. Warren Mitchell told the jury how he saw what he
         believed to be a narcotics transaction between Appellant and
         Smith and the steps he took to make sure the drug dealer,
         Appellant, and the buyer, Smith were taken into custody.

      As a professional narcotics officer with a specialized level of training, Inv.

Mitchell's detailed observations and testimony are inherently reliable and

believable. Inv. Mitchell explained his credentials as a peace officer. RRS/33-34.

He was a peace officer since 1988, holds a master peace officer ce1iification, and

is an inst1uctor for the Texas Commission on Law Enforcement and Education.

Id. Inv. Mitchell also has special additional certification from the National

Alliance of Drug Endangered Children to teach courses. Id. Inv. Mitchell

                                                                                  9
completed the basic Drug Enforcement Administration narcotics officers training

in 2008 and has numerous continuing education hours as well as work with the

Texas Narcotics Officer's Association. RR5/34-35. He has also worked as an

instructor in narcotics investigation and has personally investigated hundreds of

cases over the last six years. !d.

      At trial Inv. Mitchell identified Appellant for the jury. RR5/35, lines 7-17.

On November 9, 2010 Inv. Mitchell saw Appellant driving his blue and tan ford

pickup truck. RR5/35, lines 18-25. Appellant drove from a house he stayed at to

a convenience store called NAT 24 on the comer of Sayle and Joe Ramsey

Boulevard in Hunt County, Texas. RR5/36-37. Two other narcotics

investigators, Inv. Jason Whitten and Inv. Vic Robe1is, were riding with Inv.

Mitchell. RR5/36, lines 10-14.

      When Appellant arrived at the NAT 24 he pulled in on the west side close

to the nmihwest cmner of the store. RR5/37, lines 3-7. Appellant did not get out

of the car, go into the convenience store or get gas that day. RR5/37-66. Inv.

Mitchell saw a white ford vehicle next to where Appellant parked. RR5/3 7, lines

20-25. He watched the Hispanic female driver get out and go into the store and

the black male passenger (Robert Lewis Smith, Jr.) get out of the front seat, walk

around the back of his car and get into Appellant's front passenger seat. RR5/37-

38. Smith stayed in Appellant's truck less than two minutes. RR5/38, lines 4-7.

                                                                                 10
Inv. Mitchell testified that based on his training and experience, he believed a

drug transaction had just occmTed between Appellant and Smith. RR5/38, lines

14-16.

      Based on what he observed, Inv. Mitchell called Lt. Cole to stop Appellant

when he left the store and called patrol officers to come and stop Smith when he

left. RR5/38-39. He was around one hundred yards from Appellant when he

observed the drug transaction. RR5/60-61. Inv. Mitchell stayed and watched Lt.

Cole come and follow Appellant to make a traffic stop. RR5/38-39. Lt. Cole

stmied following Appellant right after the buy occurred. !d. Inv. Mitchell also

stayed and watched Officer Larry Henderson and Officer Phillip Spencer

confront Smith. Id.

      Inv. Mitchell also showed the jury photos that showed his interaction with

other members ofhis drug conspiracy. SE8-21; RR5/51-56. The photos showed

Appellant driving the same truck as the one he was arrested in for this crime.

SE 13-17. They also showed him at a car wash and his vehicle at the house on

Pepperport. SE 18-21. The car wash photo is significant because Appellant did

drug deals there and in fact had previously done deals there with Smith. SE4;

SE 18-19. Inv. Mitchell also testified to the submission of the drugs to the lab

and identified the drugs that were admitted as State's Exhibit 1. SE1; RRS/46-48

and pp.63-66.

                                                                                   11
      C. Inv. Jason Whitten told the jury that what he saw was a drug
         transaction.

      Inv. Whitten's training and experience coupled with his testimony show

that he was reliable and believable witness. Inv. Whitten has been a peace officer

for almost twenty years and is currently working as a narcotics task force officer

for the Drug Enforcement Administration federal task force. RR5/113, lines 4-11.

He has worked as narcotics investigator for eight years and has attended several

training classes, narcotics schools as well as training at Quantico. RR5/113, lines

16-20. He has worked undercover as a narcotics officer and witnessed drug

buys. RR5/113-114.

      On November 9, 2010 Inv. Whitten was riding with Inv. Mitchell and

Robe1is and they saw Appellant driving his truck in Greenville, Texas from near

his residence to the NAT 24. RR5/114, lines 3-20. Inv. Whitten saw Smith's car

and Appellant's truck next to it. RR5/114-115. He watched Smith get out of the

car and get in Appellant's truck. RR5/115, lines 9-10. Smith was in Appellant's

truck around a minute. !d. Based on his training and experience Inv. Whitten

believed a narcotics deal had just occmTed. RR5/115, lines 11-20. Inv. Mitchell

called for officers to pull over Appellant and Smith. RR5/115-116. He waited

with Inv. Mitchell until Lt. Cole and Officer Henderson mTived. !d.




                                                                                12
      D. Lt. Will Cole explained to the jury how he found Appellant
         leaving the scene and what items he discovered during
         Appellant's arrest.

      Lt. Will Cole is an expert in law enforcement who testified to his

credentials and experience who testified reliably and believably about his

interaction with Appellant on the date of the crime. Lt. Cole has worked as a

peace officer for twenty-eight years. RR5/133, lines 7-10. He has held

numerous positions within the depmiment including supervisory roles such as

both the criminal investigations lieutenant and now as patrol commander.

RR5/132-133. On November 9, 2010 he was called to assist in a narcotics

investigation at the request ofinv. Mitchell. RR5/133-134. Lt. Cole identified

Appellant as the person he contacted in a traffic stop about a block and a half

from the convenience store. !d. Lt. Cole anived at the scene as Appellant was

pulling out ofthe convenience store. RR5/134, lines 11-16. Lt. Cole searched

Appellant after he took him into custody and found $1030.00 RR5/134, lines 5-

13. Lt. Cole made a prope1iy receipt detailing the specific denominations of cash

seized from Appellant as well as the total amount. RR5/135-136. Photographs

of the items recovered were admitted and published to the jury. !d.; SE23-26. In

the money collected from Appellant that day Lt. Cole recovered at least ten $20

bills. RR5/136, lines 19-22.



                                                                                  13
      E. Officer Larry Henderson told the jury how he came into
         contact with Smith that day and Officer Henderson recovered
         cocaine where he saw Smith take furtive action as he pulled
         up behind him.

      Officer Lany Henderson responded in his marked vehicle to the NAT 24

on November 9, 2010 at the request ofinv. Mitchell. RR5/122-123. As he

pulled in behind Smith's car he saw Smith "make a distinct stuffing motion to the

left side in between the driver's seat and the passenger seat." RR5/123, lines 12-

24. Officer Henderson said he felt Smith was "concealing narcotics" based on

the evasive actions Smith took as the officer anived. !d. A female driver was in

the store when Officer Henderson anived but Smith and a back seat passenger

were in the car. RR5/123-124. Officer Henderson watched for fmiher

movement in the car and tried to keep the occupants from fmiher concealing the

items in the car by removing everyone from the vehicle. RR5/124, lines 10-23.

Officer Henderson identified the people from the car, including Robe1i Lewis

Smith. RR5/124-125. Both Smith and the other male had warrants and were

taken into custody. RR5/125-126. Officer Henderson searched the vehicle with

special attention to the area where he had seen Smith throw an object. RR5/128-

129. Officer Henderson located the drugs marked as State's Exhibit 1 "on the

hump that separates the passenger and driver's seat on the driver's side of the

hump" where he saw Smith make furtive movements. RR5/129, lines 2-23. The

jury saw Officer Henderson's in car video. SE3.
                                                                                  14
      F. Chemist Drew Font explained to the jury how the cocaine was
         tested and that it weighted over four grams.

      Chemist Drew Fout was a reliable and believable witness based upon his

vast training and experience in the field of forensic chemistry and specifically

analysis and identification of controlled substances. He is the drug section

supervisor for the Texas Department of Public Safety Crime Lab in Austin.

RR5/105, lines 12-15. He has worked as an analyst for fifteen years and testified

numerous times on the area of forensic d1ug analysis. RR5/105-106. Mr. Fout

identified the drug as 5.63 grams of cocaine. SE1; RR5/107-109. His report was

also admitted and published to the jury. SE2; RR5/p.109, lines 4-22.

      Any error in failure to include an accomplice witness instruction was

harmless as the reliable, believable evidence submitted to the jury tended to

connect Appellant to the offense. Furthennore, the convincing evidence

presented in this case show how persuasive the State's evidence was and

Appellant's conviction should be affirmed.

            STATE'S RESPONSE TO POINT OF ERROR TWO

             The evidence was legally sufficient to prove
             Appellant guilty of Manufacture I Delivery of
             Cocaine as alleged in the indictment.

                           Argument and Authorities

      The proper standard of review to determine legal sufficiency is whether the

evidence would support the verdict when viewed in the light most favorable to
                                                                                   15
the verdict. Johnson v. State, 23 W.W.3d 1, 7 (Tex. Crim. App. 2001). In other

words, if a reasonable trier of fact could have found beyond a reasonable doubt

the essential elements of the crime, the verdict will be deemed legally sufficient.

Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Hines v. State,

978 S.W.2d 169, 172 (Tex. App.-Texarkana, no pet.).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts. Jackson v. Virginia, 433 U.S. 307,319,99 S.Ct.

2781 (1979); Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004).

When perfonning a legal sufficiency review, the court may not sit as a thi1ieenth

juror, re-evaluating the weight and credibility of the evidence and substituting its

judgment for that of the factfinder. Dewbeny v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999), ce1i. denied, 529 U.S. 1131 (2000).

      The comi must consider all of the evidence submitted before the jury,

including inadmissible evidence. Watson v. State, 204 S.W.3d 404, 415 (Tex.

Crim. App. 2006). Specifically, the Court held that "once the trier of fact has

weighted the probative value ofunobjected-to hearsay evidence in its fact finding

process, an appellate comi cannot deny that evidence probative value or ignore it

in a review of the sufficiency of the evidence. Poindexter v. State, 153 S.W.3d

402, 406 (Tex. Crim. App. 2005) (citing Fernandez v. State, 805 S.W.2d 451,

                                                                                    16
453-56 (Tex. Crim. App. 1991) and Chambers v. State, 711 S.W.2d 240, 245-47

(Tex. Crim. App. 1986).

     A. The State proved every required element for the offense of
        possession with intent to deliver beyond a reasonable doubt.

      A person commits the offense if the person lmowingly manufactures,

delivers, or possesses with intent to deliver a controlled substance listed in

penalty group one. TEX. CON. SUB. ACT§ 481.112(a) (Ve1non 2015). Possession

means "actual care, custody, control or management." TEX. PEN. C. §

1.07(a)(39) (Ve1non 2015). Possession is voluntary if the possessor lmowingly

obtains or receives the thing possessed or is aware of his or her control of the

thing for a time sufficient to tenninate his or her control. TEX. PEN. C.§ 6.01(b)

(Ve1non 2015).

     The indictment required proof of the following elements: 1) On or about

the 9th day ofNovember, 2010 in Hunt County, Texas; 2) Bobby Joe Evens aka

Bobby Joe Grant; and 3) lmowingly or intentionally possessed with intent to

manufacture or deliver a controlled substance, cocaine, in an amount of more

than four grams but less than two hundred grams. CR 6-7.

     B. Appellant admitted his guilt to this crime as part of his prior
        testimony in a federal case.

In his federal testimony Appellant said he was a drug dealer who sold cocaine to

Smith in up to 7 gram amounts during the timeframe to include November 9,

                                                                                   17
2010 at various convenience stores in Greenville, Hunt County, Texas while

driving his t1uck. See supra Point of Error One section A. A reasonable

inference fi:om this testimony shows that Appellant admitted to every element of

this offense in his prior federal testimony. Id.

     C. The jury heard undisputed evidence that this offense occurred on
        November 9, 2010 in Hunt County, Texas.

     Investigator Warren Mitchell told the jury he anived at the scene of the

d1ug exchange and observed the Appellant on November 9, 2010 in Hunt

County, Texas. RRS/18-20. Inv. Jason Whitten also explained to the jury that

he observed Appellant meet up with Robert Smith on the same date at the NAT

24 gas station in Hunt County, Texas. RRS/114-120. Lt. Will Cole stopped

Appellant just a few blocks from the gas station on the day of the buy. RR

5/133-134. Officer Henderson encountered Smith at the gas station on

November 9, 2010 just after the buy occuned. RRS/122-123.

     Smith told the jury he came to Greenville, Texas on November 9, 2010 to

score some d1ugs from Appellant. RRS/72-73.

     D. The jury heard undisputed testimony that Appellant was the
        individual involved in this drug transaction and that he was
        arrested that day by Greenville police officers.

     Inv. Mitchell identified Appellant as the person who delivered drugs to

Smith. RR5/p.35, lines 7-17. Robert Lewis Smith also identified Appellant for

the jmy and told them he had bought drug from the Appellant. RR5/p. 72, lines
                                                                                18
6-24. Inv. Whitten was able to identify Appellant as the person he saw at the gas

station who met with Smith. RRS/114-115. Finally, Lt. Cole identified

Appellant as the person arr-ested right after the delivery just a few blocks fi·om

the crime scene. RR5 /13 3-13 4.

      E. Evidence showed Appellant possessed over four grams but less than
         two hundred grams of cocaine with intent to deliver.

      The testimony oflnv. Mitchell and Whitten detailed how Appellant pulled

into the convenience store and Smith got into his truck for a few minutes before

Appellant pulled out ofthe lot.    RRS/37-39; 114-116; See supra Point ofError

One sections Band C. Smith was stopped by officers while still in the

convenience store parking lot. RRS/122-123. Appellant was followed from the

lot and stopped just a few blocks away from the store in possession of over

$1000.00. RRS/133-136; See supra Point ofEnor One section D.

     Next, the in car video shows officers searching the car of Robert Smith Jr.

directly after the delivery occmred. SE 3. These videos also showed the

discovery of cocaine in the car near where Smith was shoving something as

officers initiated the stop. Id. See supra Point ofEnor One section E.

      The cocaine was published to the jury. SE1; RRS/66-67. Chemist Drew

Fout testified to his testing and identification of the cocaine as well as its weight

of5.63 grams. SE1; RRS/108-109.

      Fmihermore Smith testified he purchased States exhibit 1 from Appellant
                                                                                     19
just prior to the contact with officers and paid Appellant with ten 20 dollar bills.

RRS/7 4-77. Smith stated that he purchased approximately seven grams of

cocaine from Appellant, commonly called a "vick", and that he paid $200.00 (or

ten 20 dollar bills) for the drugs. RRS/75-76. Smith told the jury that the

cocaine seized from him that day was the same drugs he had just purchased fi·om

Appellant. RRS/77, lines 11-22. Smith also admitted that he tried to hide the

drugs by throwing it down near the console in the car. RRS/77-78.

      Lt. Cole's photos show the $200.00 (or ten 20 dollar bills) when he

inventoried Appellant's possessions at the time of anest. SE23-26.

      Once he was at the station, Smith confessed to buying cocaine fi·om

Appellant that day and told officers that he made regular purchases from

Appellant over a period of months. SE4. In fact, Smith told the jury he came to

Greenville that day to buy crack cocaine fi·om Appellant. RRS/72, lines 15-21;

and p.75, lines 13-17. He paid Appellant $200 dollars in the fonn often $20

bills for the 7 gram purchase. RRS/75-76. Smith knew that a 7 gram buy was

called a "Viele" RRS/76, lines 5-14. Appellant took Smith's money and gave

him the dtugs in a matter of minutes. RRS/76-77. Appellant drove off without

getting out ofhis tluck. Id. Smith said the officers found the drugs he bought

from Appellant that day after he tried to hide them when officers pulled up.

RRS/77-78. Smith said he threw the cocaine by the console to try to hide it. Id.

                                                                                   20
       Smith sold the drugs he bought from Appellant in Emory, Texas. RR5/81,

lines 14-24. Smith testified about the numerous amounts of d1ugs he purchased

fi·om Appellant as well the different locations Appellant met him to conduct the

deliveries. RRS/72-73. Smith also told the jury that Appellant made deliveries

in the same t1uck he was driving in November, 2010. RRS/73-74. The jury not

only heard Smith's testimony, but they also observed his videotaped confession.

SE4.

       The State disclosed Smith's criminal history to the jury. RRS/79-81.

Smith told them that he was cunently a federal prisoner with a d1ug conspiracy

conviction for the drugs he purchased from Appellant that day as well as the

other drugs purchased from Appellant over several months by Smith and sold in

Emory, Texas. Id.; RRS/90-96.

       Inv. Mitchell explained the jury how a person could get a hundred and fifty

uses of cocaine fi·om the five plus pounds Appellant sold in this case. RR5/41-

42. He told the jury that the cocaine would likely be broken down into smaller

amounts and sold for pieces that cost as little as ten to five dollars. !d. He also

explained that the ten dollar rock of cocaine could be broken into three separate

uses. !d. In November of 2010 seven grams of cocaine sold for around two

hundred dollars in Greenville, Texas. RRS/42, lines 8-12. The common street

name for seven grams of cocaine was a "vick." RRS/42, lines 13-24. Inv.

                                                                                      21
Mitchell also explained to the jury how cocaine that was seven grams could

diminish to just around five and a half grams over time. RRS/42-43.

     The evidence in this case is legally sufficient to prove Appellant guilty of

the offense as charged; therefore, his conviction should be affirmed.




                                                                                    22
        CONCLUSION AND PRAYER FOR RELIEF

The State prays that the Comi will affirm Appellant's sentence.


                                      Respectfully submitted,


                                      NOBLE DAN WALKER, JR.
                                      District Attorney
                                      Hunt County, Texas


                                      Is/ Keli M. Aiken
                                      KELI M. AIKEN
                                      First Assistant District Attmney
                                      P. 0. Box 441
                                      4th Floor, Hunt County Comihouse
                                      Greenville, TX 75403
                                      kaiken@huntcounty .net
                                      State Bar No. 240434482
                                      (903) 408-4180
                                      FAX (903) 408-4296




                                                                     23
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body ofthe brief and contains 3,858 words and was prepared on
Microsoft Word 2013.



                                                   Is/ Keli M. Aiken
                                                KELI M. AIKEN
                                                First Assistant District Attmney
                                                P. 0. Box 441
                                                4th Floor Hunt County Courthouse
                                                Greenville, TX 75403
                                                (903) 408-4180
                                                FAX (903) 408-4296
                                                State Bar No. 24043442


                           CERTIFICATE OF SERVICE


         A true copy of the State's brief has been placed in Elisha Hollis' box in the

Hunt County District Clerk's Office, today August 12, 2015, pursuant to local

rules.



                                                   Is/ Keli M. Aiken
                                                KELI M. AIKEN
                                                First Assistant District Attorney




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