                                                                                  ACCEPTED
                                                                              14-15-00531-CR
                                                              FOURTEENTH COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         11/3/2015 3:32:06 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                       NO. 14-15-00531-CR

                 IN THE COURT OF APPEALS             FILED IN
           FOR THE FOURTEENTH DISTRICT OF TEXAS14thHOUSTON,
                                                    COURT OF APPEALS
                                                             TEXAS
                                                      11/3/2015 3:32:06 PM
                                                      CHRISTOPHER A. PRINE
                   DAVID DANIEL RODRIGUEZ                      Clerk
                           Appellant

                                v.

                      THE STATE OF TEXAS
                            Appellee


             On Appeal from Cause Number 1967991
From the County Criminal Court at Law No. 1 of Harris County, Texas



                      BRIEF FOR APPELLANT




ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          DAUCIE SCHINDLER
                                          Assistant Public Defender
                                          Harris County, Texas
                                          TBN 24013495
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 368-9278

                                          Counsel for Appellant

                                1
                       IDENTITY OF PARTIES AND COUNSEL


Appellant                                  David Daniel Rodriguez
                                           Harris County Jail
                                           SPN 02382462
                                           701 N. San Jacinto Street
                                           5G1 O1T
                                           Houston, Texas 77002

Defense Counsel at Trial                   Ms. Marie Munier
                                           Mr. Tommy LaFon
                                           Attorneys at Law
                                           1244 Heights Blvd.
                                           Houston, Texas 77008
                                           (713)880-9965

Prosecutor at Trial                        Ms. Jilliam Hawkins
                                           Ms. Tara Shaikh
                                           Assistant District Attorneys
                                           Harris County
                                           1201 Franklin Street, 6th Floor
                                           Houston, Texas 77002
                                           (713)755-5800
Presiding Judge                            The Honorable Paula Goodheart
                                           County Criminal Court No. 1
                                           1201 Franklin Street, th Floor
                                           Houston, Texas 77002
Appellant’s Counsel                        Daucie Schindler
                                           Assistant Public Defender
                                           Harris County
                                           1201 Franklin Street, 13th Floor
                                           Houston, Texas 77002
                                           (713)274-6717




                                      2
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES ARGUMENT ....................................................................................... 1
TABLE OF CONTENTS ............................................................................................................. 2
INDEX OF AUTHORITIES ........................................................................................................ 4
STATEMENT OF THE CASE ...................................................................................................... 5
ISSUES PRESENTED ................................................................................................................. 5
          ISSUE ONE: THE  TRIAL COURT ERRED BY DENYING MR. RODRIGUEZ’
          REQUEST FOR AN INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF
          “ATTEMPTED POSSESSION OF A CONTROLLED SUBSTANCE”

STATEMENT OF FACTS............................................................................................................ 5
SUMMARY OF THE ARGUMENT .............................................................................................. 8
ISSUE ONE ............................................................................................................................... 8
ARGUMENT .............................................................................................................................. 8
      Standard of Review ......................................................................................................... 8
      Argument ......................................................................................................................... 8

PRAYER .................................................................................................................................. 11

CERTIFICATE OF COMPLIANCE ............................................................................................ 12

CERTIFICATE OF SERVICE .................................................................................................... 13




                                                                     3
                                            INDEX OF AUTHORITIES
Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). ............................................... 8

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) .................................................... 10

Bridges v. State, 389 S.W.3d 508 (Tex. App. –Houston [14th Dist.] 2012, no pet.)......... 10

Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999) ...................................................... 9

Haley v. State, 396 S.W.3d 766 (Tex. App. –Houston [14th Dist.] 2013, no pet.) ............ 8

Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) ..................................................... 8

Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006) ..................................................... 8

Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993) .............................................. 10

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). ................................................ 9

Statutes

TEX. CODE CRIM. PROC., ART. 37.09 .................................................................................... 9

TEX. HEALTH & SAFETY CODE §481.104(2) ....................................................................... 9

TEX. PENAL CODE § 15.01 .................................................................................................... 9




                                                              4
                             STATEMENT OF THE CASE

      Mr. Rodriguez was charged with the misdemeanor offense of possession of a

controlled substance, namely, less than 24 grams of Alprazolam. (C.R. at 8). Mr.

Rodriguez entered a plea of not guilty on June 2, 2015, and proceeded to trial by jury.

On June 3, 2015, the jury found Mr. Rodriguez guilty as charged. The court sentenced

him to one hundred and twenty five (125) days imprisonment in the Harris County Jail.

(C.R. at 107). Mr. Rodriguez filed timely notice of appeal and on June 3, 2015,

undersigned counsel, of The Harris County Public Defender’s Office, was appointed

to represent him. (C.R. at 110-112).

                                 ISSUE PRESENTED

                                       ISSUE ONE

      THE TRIAL COURT ERRED BY DENYING MR. RODRIGUEZ’ REQUEST FOR AN
      INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF “ATTEMPTED
      POSSESSION OF A CONTROLLED SUBSTANCE”

                               STATEMENT OF FACTS

      Officer Jaime Vargas was working patrol for the Houston Police Department on

June 15, 2014, at about 7:20 a.m. when he encountered a vehicle tilted toward a ditch

at the end of a dead-end street. There was a barricade preventing the vehicle, a white

newer model Mercedes, from falling into the ditch. Officer Vargas decided to check

out the vehicle because he suspected it might have been stolen. (2 R.R. at 100-104).

Officer Vargas approached the vehicle in his patrol car and ran the license plate on the

MBT. The vehicle did not come back as having been reported stolen so he approached
                                           5
the car on foot for further investigation. Officer Vargas noticed three Hispanic males

inside the vehicle; two in the front and one in the back. Officer Vargas approached the

driver’s side of the vehicle and notified his dispatcher that back-up was needed. Officer

Vargas called out to the men in the vehicle, but there was no response. All three of the

men were unconscious. Officer Vargas recognized Mr. Rodriguez in the courtroom as

the man in the driver’s seat of the vehicle. He first attempted to revive the driver and

then the rear passenger, but he was unable to get them to respond. He returned to the

driver, Mr. Rodriguez, and tried to get him to move out of the vehicle, but he had no

motor skills. When he began to wake up, the driver seemed to try to grab the steering

wheel, but Officer Vargas told him to calm down and placed his limp wrists in cuffs.

(2 R.R. at 105-108).

      Officer Vargas pulled the driver out of the vehicle and placed him on the ground

on his side with his left leg over his right to keep him from rolling on his stomach. He

did not find any weapons on the driver. Another officer arrived at the scene and she

held Mr. Rodriguez to keep him from rolling onto his stomach while Officer Vargas

tried to wake up the passenger in the backseat. The man finally woke up when Officer

Vargas began pulling on his right arm in an attempt to remove him from the vehicle.

When the man finally got out of the car, Office Vargas searched him for weapons and

found a small bag of marijuana so he placed him in cuffs as well. (2 R.R. at 109-112).

While Officer Vargas was attempting to revive the backseat passenger, the front seat

passenger exited the vehicle. The man was missing a leg and relied on a crutch. The
                                           6
man approached him and agreed to be searched. He too had marijuana on him so

Officer Vargas placed him under arrest as well. (2 R.R. at 113-114).

      With the assistance of another officer at the scene, Officer Vargas picked up Mr.

Rodriguez and leaned him against the vehicle so he could stand. Mr. Rodriguez was

under the influence of something, but he was cooperative. In his police report, Officer

Vargas claimed that he conducted a search for identifying information at that time.

However, at trial, Officer Vargas testified that he was going to arrest Mr. Rodriguez for

public intoxication so he searched his person incident to arrest. Officer Vargas found

a small white pill at the bottom of Mr. Rodriguez’ pocket. Officer Vargas and his

supervisor identified the pill as a controlled substance and he placed Mr. Rodriguez

under arrest for possession of a controlled substance. Officer Vargas placed the pill in

the cup holder of his patrol car along with other possessions belonging to Mr.

Rodriguez. During a search at the jail, the jail attendant found two additional pills in

Mr. Rodriguez’ possession. (2 R.R. at 132-136).

      Mona Colca, a forensic analyst at the Houston Forensic Science Center, tested

the evidence submitted by the Houston Police Department in this case and found that

the pills tested positive for alprazolam, commonly known as Xanax, and weighed .22

grams. According to Ms. Colca, Alprazolam has a retention time of 9.96 and a similar

substance, diltiazem, has a retention time of 9.79. In the sample tested in this case, the

retention time was 9.795. According to Ms. Colca, placing a pill in the cup holder of a



                                            7
vehicle could cause contamination. Despite the irregularities, Ms. Colca opined that the

substance she tested for this case was alprazolam. (2 R.R. at 162-202).

                                 SUMMARY OF THE ARGUMENT

       Mr. Rodriguez argues that the trial court erred in denying his request for a lesser

included instruction of attempted possession because there was some evidence that the

pills found in his possession where not alprazolam.

                                       ISSUE ONE

       THE TRIAL COURT ERRED BY DENYING MR. RODRIGUEZ’ REQUEST FOR AN
       INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF “ATTEMPTED
       POSSESSION OF A CONTROLLED SUBSTANCE”

                                   Standard of Review

       Error properly preserved by an objection to the charge will require reversal as

long as the error is not harmless. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.

2006); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996), citing Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 19884), cert. denied, 481 U.S. 1019 (1987). This means

that any harm, regardless of degree, is sufficient to require reversal. Id.; Haley v. State,

396 S.W.3d 756, 766 (Tex. App. –Houston [14th Dist.] 2013, no pet.).

                                         Argument

       A defendant is entitled to an instruction on a lesser-included offense where the
       proof for the offense charged includes the proof necessary to establish the lesser-
       included offense and there is some evidence in the record that would permit a
       jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-
       included offense. Anything more than a scintilla of evidence is sufficient to
       entitle a defendant to a lesser charge.

                                               8
Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999).

      Mr. Rodriguez caused the findings of the chemist to be called into question and

there was some evidence that the pills in his pocket were not alprazolam. There was

some evidence for the jury to conclude that if Mr. Rodriguez was guilty of anything at

all, he was guilty of attempted possession. Mr. Rodriguez requested a jury instruction

on attempted possession of a controlled substance. (3 R.R. at 4-5). Mr. Rodriguez’

requested instruction was denied by the Court. (3 R.R. at 10).

      By statute, an attempt to commit the offense charged is a lesser included offense.

See Tex. Code Crim. Proc., art. 37.09. The crime of possession of a controlled substance

is committed when a person knowingly or intentionally possesses a controlled substance

listed in Penalty Group 3, which includes alprazolam. Tex. Health & Safety Code §

481.104(2). A person commits an attempt offense “if, with specific intent to commit

an offense, he does an act amounting to more than mere preparation that tends but fails

to effect the commission of the offense intended.” Tex. Penal Code § 15.01(a).

      If the evidence raises the issue of a lesser included offense, the jury charge must

be given based on that evidence regardless of the strength of the evidence, regardless

of the source of the evidence, and whether or not the evidence is contradicted. Rousseau

v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

      There is some evidence for a rational jury to conclude that Mr. Rodriguez was

guilty of attempted possession, but not of actual possession, because he did not in fact

possess alprazolam, but instead was in possession of diltiazem. “Anything more than a
                                           9
scintilla of evidence is sufficient to entitle a defendant to a lesser charge.” Bignall v. State,

887 S.W.2d 21, 23 (Tex. Crim. App. 1994). The standard may be satisfied if some

evidence refutes or negates other evidence establishing the greater offense or if the

evidence presented is subject to different interpretations. Robertson v. State, 871 S.W.2d

701, 706 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994). At a minimum, the

evidence in this case was subject to different interpretations. The trial court erred in

refusing to submit the issue to the jury.

       The failure to include an instruction on the lesser-included offense of attempted

possession of a controlled substance was harmful. Bridges v. State, 389 S.W.3d 508, 513

(Tex. App. –Houston [14th Dist.] 2012, no pet.). The judge sentenced Mr. Rodriguez

to 125 days in jail on the Class A misdemeanor, which carried a potential punishment

of up to one year, plus a $4,000 fine. If the jury would have been able to convict Mr.

Rodriguez of a Class B misdemeanor, the punishment range would have been a

maximum of 180 days in jail, plus a $2,000 fine. Had he been found guilty of attempted

possession, the court might have imposed a midrange sentence in the Class B range, as

it did after he was found guilty of the only the jury was permitted to consider.




                                               10
                                     PRAYER

      Mr. Rodriguez asks this Court to reverse and remand for a new trial due to

harmful jury charge error.               .

                                              Respectfully submitted,

                                              Alexander Bunin
                                              Chief Public Defender



                                              /s/ Daucie Schindler
                                              Daucie Schindler
                                              State Bar No. 24013495
                                              Public Defender’s Office
                                              Harris County, Texas
                                              Assistant Public Defender
                                              1201 Franklin, 13th Floor
                                              Houston, Texas 77002
                                              Daucie.Schindler@pdo.hctx.net
                                              Tel: 713-274-6717
                                              Fax: 713-368-9278




                                         11
                         CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.      Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 2,212 words printed in a proportionally spaced typeface.

2.     This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 13 point font in footnotes produced by Microsoft

Word Software.

3.   Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.




                                       /s/ Daucie Schindler
                                        DAUCIE SCHINDLER




                                           12
                         CERTIFICATE OF SERVICE

      I certify that on the 3rd day of November, 2015, a copy of the foregoing

instrument has been electronically served upon the Appellate Division of the Harris

County District Attorney’s Office.




                                              /s/ Daucie Schindler
                                              DAUCIE SCHINDLER




                                         13
