                                                                          ACCEPTED
                                                                      06-15-00133-CR
                                                           SIXTH COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                                11/18/2015 3:17:35 PM
                                                                     DEBBIE AUTREY
                                                                               CLERK

            NO. 06-15-00133-CR

                                               FILED IN
    IN THE COURT OF APPEALS FOR 6th COURT OF APPEALS
                                  TEXARKANA, TEXAS
THE SIXTH COURT OF APPEALS DISTRICT
                                11/19/2015 9:22:00 AM
         TEXARKANA, TEXAS            DEBBIE AUTREY
                                                   Clerk




 BRANDON BERNARD BATTLE,

                Appellant
                     v.
      THE STATE OF TEXAS,

                 Appellee



         APPELLANT’S BRIEF
   On Appeal from the 220th District Court
         of Bosque County, Texas,
      Trial Court Cause No. CR 14972

                          E. Alan Bennett
                          State Bar #02140700
                          Attorney for Appellant

                          Sheehy, Lovelace & Mayfield, P.C.
                          510 N. Valley Mills Dr., Ste. 500
                          Waco, Texas 76710
                          Telephone: (254) 772-8022
                          Telecopier: (254) 772-9297
                          Email: abennett@slmpc.com
                    Identity of Parties and Counsel

       Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides

the following list of all parties to the trial court’s judgment and the names

and addresses of all trial and appellate counsel.


THE DEFENSE:

Brandon Bernard Battle                                             Appellant

Terence A. “Tiger” Russell                                      Trial Counsel
P.O. Box 306
Hillsboro, Texas 76645

E. Alan Bennett                                            Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710

THE PROSECUTION:

Adam Sibley                                         Trial & Appellate Counsel
Shaun Carpenter
Assistant District Attorneys

B.J. Shepherd
District Attorney
220th Judicial District
P.O. Box 368
Meridian, Texas 76665




Appellant’s Brief                                                       Page 2
                                             Table of Contents

Identity of Parties and Counsel ......................................................................... 2

Table of Contents ................................................................................................ 3

Index of Authorities ............................................................................................ 5

Statement of the Case ......................................................................................... 8

Statement Regarding Oral Argument ............................................................... 9

Issues Presented .................................................................................................. 9

Statement of Facts ..............................................................................................10

Summary of the Argument ...............................................................................21

Argument ............................................................................................................22

  First Issue: The evidence is legally insufficient to support the trial court’s
  finding that Battle knowingly possessed the narcotics found in the
  apartment. .....................................................................................................22
      A. The Court Reviews the Evidence in a Light Favorable to the Verdict.
      .......................................................................................................................22
      B. The Evidence Must Link the Accused to the Narcotics. .....................23
      C. The Evidence Does Not Link Battle to the Narcotics. .........................25
      D. The Court Must Reverse and Render a Judgment of Acquittal. ........29

  Second Issue: The evidence is factually insufficient to support the trial
  court’s finding that Battle knowingly possessed the narcotics found in the
  apartment.     ..................................................................................................30
      A. The Court of Criminal Appeals is Reconsidering Brooks....................30
      B. The Court Reviews the Evidence in a Neutral Light. ..........................32
      C. The Evidence is Factually Insufficient to Link Battle to the Narcotics.
      .......................................................................................................................33


Appellant’s Brief                                                                                                    Page 3
      D. The Court Must Reverse the Judgment and Remand for a New Trial.
      .......................................................................................................................36

  Third Issue: The judgment incorrectly recites that Battle was convicted of
  a first degree felony. .......................................................................................37
      A. The Trial Court Must Enter a Proper Judgment..................................37
      B. No Objection is Required. ......................................................................37
      C. The Judgment is Not “Proper.” .............................................................38
      D. This Court Must Correct the Judgment. ..............................................39


Prayer ..................................................................................................................40

Certificate of Compliance ..................................................................................41

Certificate of Service ..........................................................................................41




Appellant’s Brief                                                                                                    Page 4
                                           Index of Authorities



                                                    Texas Cases

Anderson v. State, 416 S.W.3d 884 (Tex. Crim. App. 2013)..............................23

Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) ..... 38, 39

Assiter v. State, 58 S.W.3d 743 (Tex. App.—Amarillo 2000, no pet.) . 32, 35, 36

Bozeman v. State, 340 S.W.3d 515 (Tex. App.—Texarkana), rev’d on other
grounds, 353 S.W.3d 886 (Tex. Crim. App. 2011) .............................................23

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................... 30, 31, 32

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) .....................................29

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ............................ 32, 36

Cobb v. State, 95 S.W.3d 664 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
........................................................................................................................38, 39

Denny v. State, No. 13-00-00510-CR, 2001 WL 34615524 (Tex. App.—Corpus
Christi 2001, pet. ref’d) ................................................................................35, 36

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ................. 24, 25, 26, 34

Garner v. State, 214 S.W.3d 705 (Tex. App.–Waco 2007, no pet.) ............. 37, 39

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .....................................23

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) .......................... 32, 33, 35

Johnson v. State, 419 S.W.3d 665 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d) ....................................................................................................................31

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) .....................................33

Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) ....................................23



Appellant’s Brief                                                                                                   Page 5
Martin v. State, 405 S.W.3d 944 (Tex. App.—Texarkana 2013, no pet.).........39

Mitchell v. State, 942 S.W.2d 170 (Tex. App.—Amarillo 1997, pet. ref’d) ......37

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ................ 24, 26, 34

Stewart v. State, No. 10-14-00183-CR, 2015 WL 3823273 (Tex. App.—Waco
June 18, 2015, pet. filed) (mem. op., not designated for publication) ...........25

Triplett v. State, 292 S.W.3d 205 (Tex. App.—Amarillo 2009, pet. ref’d)
..................................................................................................................... passim

Walker v. State, No. PD-1429-14 (Tex. Crim. App. Oct. 14, 2015) ...................31

Ward v. State, 48 S.W.3d 383 (Tex. App.—Waco 2001, pet. ref’d) ...... 32, 33, 36

White v. State, 890 S.W.2d 131 (Tex. App.—Texarkana 1994, pet. ref’d) . 35, 36




Appellant’s Brief                                                                                                 Page 6
                                           Texas Constitution

TEX. CONST. art. V, § 6 ........................................................................................31




                                               Texas Statutes

TEX. CODE CRIM. PROC. art. 37.12 .......................................................................37

TEX. CODE CRIM. PROC. art. 42.01, § 1(13) .........................................................37

TEX. CODE CRIM. PROC. art. 44.25.......................................................................31

TEX. HEALTH & SAFETY CODE § 481.115 .........................................................8, 38




                                                      Rules

TEX. R. APP. P. 41.3 ............................................................................................... 8

TEX. R. APP. P. 43.2 ................................................................................. 29, 36, 39




Appellant’s Brief                                                                                            Page 7
                              Statement of the Case

      In a bench trial, the trial court, the Honorable Phil Robertson, judge of

the 220th District Court of Bosque County, found Brandon Bernard Battle

guilty of possession of one gram or more but less than four grams of

methamphetamine. (CR 32-33), (RR 1 180) See TEX. HEALTH & SAFETY CODE §

481.115(c). Battle pleaded “true” to enhancement allegations raising his

punishment range to that for an habitual offender. (RR 181-82) The court

sentenced Battle to twenty-five years’ imprisonment. (CR 32-33), (RR 183)

Battle timely filed a notice of appeal to the Waco Court of Appeals. (CR 41)

Under a docket equalization order, the appeal was transferred to this Court. 2




1
       Because the second volume of the reporter’s record contains only exhibits, counsel
will refer in this brief to the first volume of the reporter’s record as “RR” and will cite
individual exhibits as necessary.

2
       In accordance with Rule 41.3, this appeal should be decided in accordance with
the precedent of the Waco Court of Appeals to the extent applicable. TEX. R. APP. P. 41.3.
Accordingly, counsel provides citations to relevant decisions of the Waco Court (and of
this Court) when available.


Appellant’s Brief                                                                   Page 8
                    Statement Regarding Oral Argument

      Oral argument will not aid the Court’s decisional process in this

appeal.




                             Issues Presented


First Issue:    The evidence is legally insufficient to support the trial court’s
                finding that Battle knowingly possessed the narcotics found
                in the apartment.

Second Issue: The evidence is factually insufficient to support the trial
              court’s finding that Battle knowingly possessed the narcotics
              found in the apartment.

Third Issue:    The judgment incorrectly recites that Battle was convicted of
                a first degree felony.




Appellant’s Brief                                                         Page 9
                           Statement of Facts

The Charges

      The indictment alleges that on or about February 5, 2014, Battle did:

      intentionally or knowingly possess a controlled substance, namely,
      Methamphetamine, in an amount of one gram or more but less than
      four grams.

(CR 5)

The Trial Court Proceedings

      Battle and his trial counsel signed a written waiver of jury trial. (CR

29) The court admonished Battle regarding his right to a jury trial and

determined that Battle knowingly and intelligently waived this right. (RR 8-

11)

      Clifton Police Chief Trace Hendricks has worked with confidential

informants before on “numerous occasions.” (RR 28) He explained that he

met Misti Millican because of her involvement in an accident in which she

had been a passenger but fled the scene. (RR 29) She came to the office to

discuss the case. She explained that she had just bought narcotics before the

accident and fled because she did not want to be caught with it in her

possession. (RR 30)




Appellant’s Brief                                                     Page 10
      Millican’s name had come up in “numerous interviews with narcotics

offenders” so Chief Hendricks asked her if she would work with the

department as a confidential informant in exchange for some leniency on the

evading case. She agreed to contact people she knew and try to arrange

narcotics deals with them. (RR 31- 32)

      One of those individuals was Battle, and he was arrested that

afternoon. (RR 36-37) However, Chief Hendricks did not participate in the

arrest or even write a report. (RR 39)

      Misti Millican Black testified that, when she met with Chief Hendricks,

she   admitted      that   the   driver   and   she   had   been   transporting

methamphetamine to a location in Clifton when they fled after the accident.

(RR 47 When she agreed to work with the department, she made phone calls

trying to arrange drug deals. She made these calls from her apartment and

several officers were present when she made them. (RR 49)

      Millican testified that she has known Battle as a narcotics dealer for

about fifteen years. (RR 50) She had purchased from him before. When she

called Battle, she wanted to ask him to bring her a sixteenth of an ounce of




Appellant’s Brief                                                       Page 11
methamphetamine which is also known as a “teener.”3 But Battle did not

answer, so she called another dealer. Battle returned her call later. (RR 52)

The second person she called came to her apartment first. They arrested him

and hid him in the bathroom because Battle was on the way. (RR 54)

      Millican never saw any narcotics in Battle’s hand, but she claims that

she saw him reach behind the television. 4 She insisted that she had no reason

to hide any methamphetamine behind the television, nothwithstanding that

she later testified she was using methamphetamine on a daily basis at that

time. (RR 55, 61) Battle, however, insisted to the officers that he did not have

any drugs, and if any drugs were found, they were Millican’s. (RR 56)

      Relying on cell phone records, 5 Millican identified the telephone calls

and text messages she exchanged with Battle that afternoon. (RR 57-59) She

testified that in their text messages, “I told him I wanted to purchase




3     Millican explained that a “teener” is 1.7 grams and costs $170. (RR 53)

4
       Notwithstanding Millican’s testimony, the video recording depicting the arrest
shows that the officers tackled Battle before he even got to the television. (SX 1) The
television is around the corner and to the right from the hallway depicted when the video
begins. Thus, Battle had no opportunity to reach behind the television.

5
        When the State later offered the phone records in evidence, Battle objected on the
basis of hearsay, and the State withdrew the exhibit. (RR 102) However, Battle did not
object to Millican’s earlier testimony about the contents of the records.


Appellant’s Brief                                                                 Page 12
methamphetamine and he had told me he was getting dressed.” (RR 60)

Millican was also arrested that day on a warrant for hot checks. (RR 61)

      On cross-examination, Millican described how the officers looked

through her apartment when they first arrived. (RR 64-66) She

acknowledged that she had been previously convicted of burglary of a

building in Hill County. (RR 71) Millican admitted to the officers (and the

jury) that it was “a possibility” that the narcotics were hers. (RR 73-74)

However, after seeing how the drugs were packaged, Millican claimed that

they were not hers. She also admitted that she had sent a Facebook message

claiming that the drugs were hers. She explained, however, that she did so

because Battle had threatened to kill her and she feared for her life. (RR 74)

She claimed that he made this threat to her in her living room after he was

handcuffed that afternoon. 6 (RR 74-75)

      Clifton Police Officer Darren Glenn7 also met with Millican when she

agreed to work with the department. (RR 79) When Millican talked on the




6
      However, the video recording of the arrest and subsequent events does not contain
any indication that Battle threatened her in any way. (SX 1)
7
      At the time of trial, Officer Glenn was a deputy with the Bosque County Sheriff’s
Department. (RR 77)


Appellant’s Brief                                                              Page 13
phone that afternoon, she used the speaker phone setting. (RR 84) Officer

Glenn recognized Battle’s voice on the phone. (RR 85) He recalled that Battle

agreed to bring Millican $170 worth of methamphetamine. (RR 87) He

acknowledged that he conducted only a “cursory search” of the apartment’s

kitchen and living room area. (RR 90)

      Battle knocked on the back door, and Millican let him in. She walked

ahead of him as they went through the kitchen to the living room. They had

a brief conversation, but Officer Glenn could not hear what was being said.

When Battle looked down the hall, Officer Glenn thought he might see the

officer operating the video camera, so he announced his presence and

commenced to apprehend Battle. (RR 92) Officer Glenn tried to bear hug

Battle. Other officers also grabbed him. “We slid across kind of a little table

and a TV set there then lowered him to the floor.” They did not locate any

drugs on his person. He denied having brought anything with him. (RR 93)

      A couple of minutes after Officer Glenn secured Battle, another officer

(Deputy Pullin) found a small bag of suspected methamphetmine “right




Appellant’s Brief                                                       Page 14
underneath us” in the area where they struggled with Battle. 8 He did not see

Battle throw anything on the ground. Deputy Pullin purportedly found a

second baggie containing suspected methamphetamine “in the same spot,

kind of close to the wall between the little table stand and the TV, just that

same area.” (RR 95-96) He insisted that these two baggies were not there

before Battle arrived. He testified that he was “confident” that this

contraband must have come from Battle. (RR 96)

      Officer Glenn testified that he “was made aware” that Battle had

threatened Millican at the time. 9 However, he did not hear or see any threats

made. (RR 97) The officers were unable to obtain fingerprints from the

baggies that they seized. (RR 100)

      On cross-examination, Officer Glenn testified that Battle’s hands were

in his pockets when he walked into the apartment. (RR 106) He is pretty sure

that he grabbed hold of one of Battle’s arms “maybe his left” when he first




8
       The video recording does not support Officer Glenn’s testimony that this baggie
was “found” “right underneath us.” When Deputy Pullin directs the officer making the
video recording to the area where he purportedly found the baggie (at approximately
3:36 in the video), the deputy is indicating an area between the television and another
piece of furniture containing wicker baskets, several feet from where the officers took
Battle down. (SX 1)

9
      Presumably, Millican shared this information with the deputy.


Appellant’s Brief                                                              Page 15
tried to apprehend him. He conceded, however, that one of the other officers

may have grabbed one of his arms and pulled it from his pocket. (RR 107)

He does not remember Millican telling him those could have been her drugs.

(RR 108) He agreed that Battled steadfastly denied that the narcotics were

his. Officer Glenn never personally saw Battle in possession of them. (RR

111)

       On redirect, Officer Glenn identified the video taken from the scene as

State’s Exhibit 1. (RR 113) The exhibit was admitted without objection. (RR

114) The trial court viewed the tape. (RR 115)

       Chief Deputy Clint Pullin was also in Millican’s apartment when the

calls were made. (RR 118) He testified that they searched her apartment

beforehand to make sure she did not have narcotics and they did not find

any. (RR 119) The first suspect who came to Millican’s apartment was

arrested without incident. Deputy Pullin testified that this suspect had no

opportunity to throw any narcotics on the floor of the apartment. (RR 120)

       When Battle arrived and Officer Glenn attempted to apprehend him,

Deputy Pullin testified that Battle’s right arm knocked some items off the

top of the television and they fell to the floor. Officer Glenn then patted him

down for narcotics and weapons and found none. (RR 121)

Appellant’s Brief                                                       Page 16
      Deputy Pullin did not see Battle throw anything down. But because

Millican had called Battle for a drug deal and because the deputy had seen

Battle’s arm come across the top of the television and knock some things to

the floor, he searched around the television and found a baggie of

methamphetamine. (RR 122) He found the other baggie behind the

television. (RR 123) It was clear from Battle’s telephone conversation with

Millican that she wanted to buy drugs from him. (RR 125)

      On cross-examination, Deputy Pullin acknowledged that he did not

personally search Millican’s apartment. (RR 127-128) He also agreed that

Battle thought the drugs were planted. (RR 128)

      DPS forsenic scientist Brian Kivlighn testified that one of the baggies

contained 1.66 grams of methamphetamine and the second bag contained

2.33 grams. (RR 136) Collectively, they contained 3.99 grams. (RR 137)

      Casey Wilks is an investigator with the Bosque County Sheriff’s

Department. (RR 140) Based on what he overheard in the telephone calls

between Millican and Battle, he understood that Battle was supposed to

bring methamphetamine to the apartment. However, he only heard Battle

make “very vague” statements as best he could recall, and he did not hear

Battle state that he was bringing methamphetamine to Millican. (RR 142)

Appellant’s Brief                                                     Page 17
      On cross-examination, he conceded that he did not personally see

Battle tossing anything down. He was 10-12 feet away, prepared to use his

taser if necessary. (RR 146)

      The State rested after Wilks’s testimony.

      Brandon Battle testified in his own defense. (RR 149) He

acknowledged that he had been to prison several times, primarily for drug

offenses. He recalled that, on the date in question, he awakened around noon

after having been up until about 3:00 in the morning. When he awakened,

he found two text messages on his phone from Millican: one proposing oral

sex and and one asking for a teener. He did not respond to the latter message.

(RR 150) When he returned Millican’s calls, she told him she needed a “T.”

He told her that he did not have any drugs but he was on the way to follow

up on her invitation for sexual activity. (RR 150-51)

      Not one time did I ever say anything about dope or price of dope
      as Officer Glenn said. That was her. All I said is I would get
      dressed and I’ll be on my way.

(RR 151)

      Battle insisted that he did not have any methamphetamine or throw

any down on that occasion. In fact, he was “one thousand percent certain”

that his fingerprints would not be on the baggies. (RR 152) He explained that

Appellant’s Brief                                                      Page 18
he has a good-paying job with Big Creek Construction, has started a family,

owns a home and car, and had changed his life after all those years in prison.

He had no need or incentive to sell drugs. (RR 152-53) He is on parole and

regularly meets with his parole officer as required. He explained that the

parole office did not oppose his release on bond in this case because they

considered the case to be frivolous. The district attorney’s office took no

action on the case for over six months. (RR 153-54) He concluded his direct

testimony by again insisting that he did not throw the narcotics down in

Millican’s apartment and did not possess any narcotics on that occasion. (RR

154)

       On cross-examination, Battle testified about his prior convictions. (RR

155-157) He insisted that he went over to Millican’s apartment only for oral

sex. (RR 158) He agreed that Millican asked for a teener but observed that no

witness testified that he had offered to sell her any narcotics. The only

testimony was that he said he was getting dressed and then would come

over. (RR 159-60) Battle believes that he was set up and the drugs were

planted. (RR 163)




Appellant’s Brief                                                      Page 19
      On redirect, he explained that he decided to waive his right to a jury

trial and go before the judge because he felt the judge would give him a fair

trial. (RR 172)

      After considering the evidence and argument, the trial court found

Battle “guilty of the offense of possession of a controlled substance,

methamphetamine, one gram or more, but less than four grams as alleged in

the indictment.” (RR 180)

      The punishment phase consisted of Battle pleading true to the

enhancement allegations. (RR 181-82) After hearing very brief argument, the

trial court sentenced Battle to twenty-five years’ imprisonment. (CR 32-33),

(RR 183)




Appellant’s Brief                                                     Page 20
                      Summary of the Argument

      Bernard Battle did not have exclusive control of the premises where he

was arrested. Two other drug users/dealers were present. One of them

admitted that the methamphetamine found could be hers and later claimed

it as her own. The circumstantial evidence the State relied on to connect

Battle to the contraband was woefully lacking. Even when viewed in the

light most favorable to the trial court’s finding, the evidence is legally

insufficient to support a finding that Battle knowingly possessed the

narcotics.

      Because the evidence referenced above is so weak and because

numerous factors tend to contradict the trial court’s finding that Battle

knowingly possessed the narcotics, the evidence is factually insufficient to

support a finding that Battle knowingly possessed the narcotics.

      The judgment recites that Battle was convicted of a first degree felony.

However, possession of between one and four grams of methamphetamine

is a third degree felony. The enhancement allegations have no bearing on

this issue. The judgment should be modified to accurately reflect the offense

of which Battle was convicted.




Appellant’s Brief                                                      Page 21
                                  Argument

First Issue:        The evidence is legally insufficient to support the trial
                    court’s finding that Battle knowingly possessed the
                    narcotics found in the apartment.

      Battle did not have exclusive control of the premises where he was

arrested. Two other drug users/dealers were present. One of them admitted

that the methamphetamine found could be hers and later claimed it as her

own. The circumstantial evidence the State relied on to connect Battle to the

contraband was woefully lacking. Even when viewed in the light most

favorable to the trial court’s finding, the evidence is legally insufficient to

support a finding that Battle knowingly possessed the narcotics.


A. The Court Reviews the Evidence in a Light Favorable to the Verdict.

             In determining whether the evidence is legally sufficient to
      support a conviction, a reviewing court must consider all of the
      evidence in the light most favorable to the verdict and determine
      whether, based on that evidence and reasonable inferences
      therefrom, a rational fact finder could have found the essential
      elements of the crime beyond a reasonable doubt. This “familiar
      standard gives full play to the responsibility of the trier of fact
      fairly to resolve conflicts in the testimony, to weigh the evidence,
      and to draw reasonable inferences from basic facts to ultimate
      facts.”




Appellant’s Brief                                                        Page 22
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (quoting Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      Juries are permitted to draw multiple reasonable inferences from
      the evidence as long as each inference is supported by the
      evidence presented at trial, but they are not permitted to draw
      conclusions based on speculation. In Hooper, we explained that
      “an inference is a conclusion reached by considering other facts
      and deducing a logical consequence from them. Speculation is
      mere theorizing or guessing about the possible meaning of the
      facts and evidence presented.” While a conclusion that is
      reached by speculation may not be completely unreasonable,
      such conclusion is not sufficiently based upon facts or evidence
      to support a conviction beyond a reasonable doubt.

Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting Hooper

v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)).

      These same principles apply in an appeal following a bench trial.

Bozeman v. State, 340 S.W.3d 515, 519 (Tex. App.—Texarkana), rev’d on other

grounds, 353 S.W.3d 886 (Tex. Crim. App. 2011).


B. The Evidence Must Link the Accused to the Narcotics.

      The State had to prove, among other things, that Battle knowingly

possessed the methamphetamine. To prove possession, the State had to

present evidence that Appellant exercised “actual care, custody, control, or

management” of the methamphetamine. Poindexter v. State, 153 S.W.3d 402,



Appellant’s Brief                                                        Page 23
405–06 (Tex. Crim. App. 2005); Triplett v. State, 292 S.W.3d 205, 208 (Tex.

App.—Amarillo 2009, pet. ref’d).

         And when the accused did not have exclusive possession of the

location where the narcotics were found, the State must offer evidence of

additional independent facts or circumstances that tend to connect or link

the accused to the narcotics. Poindexter, 153 S.W.3d at 406; Triplett, 292

S.W.3d at 208; see Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App.

2006).

         This Court has identified the following potential links that may tend

to connect the accused to the narcotics:

         (1) whether the contraband was in plain view or recovered from
         an enclosed place; (2) whether the defendant was the owner of
         the premises or had the right to possess or control the place
         where the contraband was found; (3) whether the defendant was
         found in possession of a large amount of cash; (4) whether the
         contraband was conveniently accessible to the defendant; (5)
         whether the contraband was found in close proximity to the
         defendant; (6) whether an odor of contraband was present; (7)
         whether the defendant possessed other contraband when
         arrested; (8) whether the defendant possessed paraphernalia to
         use the contraband; (9) whether paraphernalia to use the
         contraband was available to or in plain view of the defendant;
         (10) whether the physical condition of the defendant indicated
         recent consumption of the contraband in question; (11) whether
         conduct by the defendant indicated a consciousness of guilt; (12)
         whether the defendant made any incriminating statements when
         arrested; (13) whether the defendant attempted to flee; (14)

Appellant’s Brief                                                        Page 24
      whether the defendant made furtive gestures; (15) whether the
      defendant had a special connection to the contraband; (16)
      whether the persons present gave conflicting statements about
      relevant matters; (17) the quantity of the contraband discovered;
      (18) whether the defendant was armed; (19) whether the
      defendant was observed in a suspicious place under suspicious
      circumstances; (20) whether the accused was familiar or had
      previous experience with drugs; and, (21) whether any forensic
      evidence (e.g., fingerprints, DNA, etc.) connects the defendant to
      the contraband or its container.

Triplett, 292 S.W.3d at 209; see also Evans, 202 S.W.3d at 162 n.12; Stewart v.

State, No. 10-14-00183-CR, 2015 WL 3823273, at *7 (Tex. App.—Waco June

18, 2015, pet. filed) (mem. op., not designated for publication).

      No set formula exists for determining whether there are sufficient links

to support an inference of knowing possession. Stewart, 2015 WL 3823273, at

*7; Triplett, 292 S.W.3d at 209. Rather, each case must be examined according

to its own facts. Triplett, 292 S.W.3d at 209. The number of links is not as

important as the combined logical force of the evidence tending to link the

accused to the contraband. Stewart, 2015 WL 3823273, at *7; Triplett, 292

S.W.3d at 209.


C. The Evidence Does Not Link Battle to the Narcotics.

      Battle did not have exclusive control of the premises where he was

arrested. Two other drug users/dealers were present. One of them admitted


Appellant’s Brief                                                       Page 25
that the methamphetamine found could be hers and later claimed it as her

own. Therefore, the State needed to present additional evidence connecting

Battle to the narcotics he has been accused of possessing. See Evans, 202

S.W.3d at 161–62; Poindexter, 153 S.W.3d at 406; Triplett, 292 S.W.3d at 208.

However, the links are woefully lacking.

      Here counsel discusses the factors that this Court has identified as

significant in connecting an accused such as Battle to contraband:

      1)     it cannot be said that the contraband was in plain view. A review
             of State’s Exhibit 1 indicates that Deputy Pullin “found” the first
             baggie over two minutes after Battle was arrested. 10 Yet, the area
             around the television was not in any manner cluttered so as to
             obstruct the officers’ view. It took him another two and a half
             minutes to “find” the second baggie. (SX 1) What took so long?

      2)     Battle did not own the premises.

      3)     Battle did not have a large amount of cash.

      4)     The contraband was not conveniently accessible to Battle.

      5)     The contraband was allegedly found somewhat near Battle.

      6)     There was no odor of contraband present.

      7)     Battle did not possess any other contraband.



10
       Officer Glenn had complete control over Battle without further resistance at 00:34
on the video. It appears that Deputy Pullin “discovered” the first baggie at around 02:38.
He did not “discover” the second baggie until around 05:05 on the video. (SX 1)


Appellant’s Brief                                                                 Page 26
      8)    Battle did not have any drug paraphernalia.

      9)    There was no drug paraphernalia in plain view.

      10)   Battle was not under the influence of anything.

      11)   Battle’s conduct was consistent with lack of guilt—not
            consciousness of guilt. He did not resist arrest. His response
            when confronted with the contraband speaks volumes as to his
            innocence.

      12)   Battle made no incriminating statements and insisted on his
            innocence.

      13)   Battle did not resist arrest or try to flee.

      14)   The State will likely argue that Battle made a furtive gesture
            when Officer Glenn first alerted him to the officers’ presence. But
            the video does not support that. Battle’s hands were in his
            pockets until the officers took him down.

      15)   Battle had no special connection to the contraband.

      16)   Battle provided a consistent response regarding his lack of
            knowledge about the contraband which he continues to
            maintain.

      17)   The officers “found” a relatively small quantity of contraband in
            terms of that which would be readily apparent to a casual
            observer.

      18)   Battle was not armed.

      19)   Battle was arguably in a suspicious place under suspicious
            circumstances because Millican was trying to set up drug deals.

      20)   Battle has previous experience with narcotics.

Appellant’s Brief                                                       Page 27
      21)   There were no fingerprints or other forensic evidence connecting
            Battle to the contraband.

See Triplett, 292 S.W.3d at 209.

      To summarize, the only links tending to connect Battle to the narcotics

were: (1) he was in the vicinity of where the narcotics were allegedly found;

(2) he purportedly made a furtive gesture although the video evidence does

not support this assertion; (3) he was in a suspicious place under suspicious

circumstances; and (4) he has a prior drug history.

      The first two of these links are quite tenuous due to the nature of the

circumstantial evidence, particularly when viewed in conjunction with the

video evidence. The other two links, without more, offer no significant

weight to the evidence. For these reasons, the combined logical force of these

factors do not sufficiently link Battle to the narcotics that the State has

accused him of possessing.

      Accordingly, the evidence is legally insufficient to support the trial

court’s finding that Battle knowingly possessed the narcotics.




Appellant’s Brief                                                      Page 28
D. The Court Must Reverse and Render a Judgment of Acquittal.

         When the evidence is legally insufficient, the proper remedy is to

reverse the judgment of conviction and render a judgments of acquittal. See

TEX. R. APP. P. 43.2(c); Byrd v. State, 336 S.W.3d 242, 258 (Tex. Crim. App.

2011).

         For these reasons, because the evidence is legally insufficient to prove

that Battle knowingly possessed the contraband, Battle asks the Court to

reverse the judgment of conviction for possession of methamphetamine and

render a judgment of acquittal.




Appellant’s Brief                                                         Page 29
Second Issue:       The evidence is factually insufficient to support the trial
                    court’s finding that Battle knowingly possessed the
                    narcotics found in the apartment.

      Battle did not have exclusive control of the premises where he was

arrested. Two other drug users/dealers were present. One of them admitted

that the methamphetamine found could be hers and later claimed it as her

own. The circumstantial evidence the State relied on to connect Battle to the

contraband was woefully lacking. Because the evidence is so weak and

because numerous factors tend to contradict the trial court’s finding that

Battle knowingly possessed the narcotics, the evidence is factually

insufficient to support this finding.


A. The Court of Criminal Appeals is Reconsidering Brooks.

      In Brooks, a plurality of the Court of Criminal Appeals concluded that

Texas appellate courts should not consider factual-insufficiency claims

because, among other things, the standard of review had become

“indistinguishable” from the legal-insufficiency standard of Jackson v.

Virginia. Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010)

(plurality op.).




Appellant’s Brief                                                       Page 30
      That decision has not been without its critics. See, e.g., Johnson v. State,

419 S.W.3d 665, 671 n.2 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); see

also Brooks, 323 S.W.3d at 926-32 (Price, J., dissenting). Among other things,

these opinions refer to the constitutional and statutory authority for

appellate courts to consider factual-insufficiency challenges. For example,

article 44.25 of the Code of Criminal Procedure invests Texas appellate

courts with jurisdiction to reverse a criminal judgment “upon the facts.” TEX.

CODE CRIM. PROC. art. 44.25. Article V, section 6 of the Texas Constitution

provides that the decisions of the courts of appeals “shall be conclusive on

all questions of fact brought before them on appeal.” TEX. CONST. art. V, § 6

(emphasis added).

      More importantly, the Court of Criminal Appeals has recently granted

review in a case indicating that the Court is prepared to revisit the viability

of a defendant’s right to challenge the factual sufficiency of the evidence. See

Walker v. State, No. PD-1429-14 (Tex. Crim. App. Oct. 14, 2015) (order

granting discretionary review). The Court granted review in that case and a

companion case on the following issue:

      The Court of Appeals erred in finding legally sufficient evidence
      in this case, and allows this Court to reexamine the issue of



Appellant’s Brief                                                         Page 31
      factually sufficient evidence from Brooks v. State, 323 S.W.3d 893
      (Tex. Crim. App. 2010).

      Therefore, Battle presents this issue understanding that the Court of

Criminal Appeals may soon reinstate the factual-insufficiency challenge

authorized both by statute and by the Texas Constitution.


B. The Court Reviews the Evidence in a Neutral Light.

      The standard of review for a factual-insufficiency challenge differs

from a legal-insufficiency challenge. The appellate court:

      asks whether a neutral review of all the evidence, both for and
      against the finding, demonstrates that the proof of guilt is so
      obviously weak as to undermine confidence in the jury’s
      determination, or the proof of guilt, although adequate if taken
      alone, is greatly outweighed by contrary proof . . . to the extent
      that the [finding of guilt] is clearly wrong and manifestly unjust.

Ward v. State, 48 S.W.3d 383, 387 (Tex. App.—Waco 2001, pet. ref’d) (quoting

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); accord Assiter v. State,

58 S.W.3d 743, 747-48 (Tex. App.—Amarillo 2000, no pet.).

      The appellate court does not employ the prism of the light most

favorable to the verdict when viewing the evidence. Johnson, 23 S.W.3d at 7;

Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Assiter, 58 S.W.3d

at 747; Ward, 48 S.W.3d at 387.



Appellant’s Brief                                                          Page 32
       “The court reviews the evidence weighed by the jury that tends to

prove the existence of the elemental fact in dispute and compares it with the

evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7 (quoting

Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)); Ward, 48 S.W.3d at

387.

       The appellate court “does not indulge in inferences.” Johnson, 23

S.W.3d at 7; Ward, 48 S.W.3d at 387. “Rather, it looks at all the evidence on

both sides and then makes a predominantly intuitive judgment.” Johnson, 23

S.W.3d at 7 (quoting William Powers and Jack Ratliff, Another Look at “No

Evidence” and “Insufficient Evidence,” 69 TEX. L. REV. 515, 519 (1991)); Ward, 48

S.W.3d at 388.

       When this Court applies this standard to the evidence, the Court will

be left to conclude that the evidence is factually insufficient to support the

trial court’s finding that Battle knowingly possessed the narcotics.


C. The Evidence is Factually Insufficient to Link Battle to the Narcotics.

       Battle did not have exclusive control of the premises where he was

arrested. Two other drug users/dealers were present. One of them admitted

that the methamphetamine found could be hers and later claimed it as her



Appellant’s Brief                                                        Page 33
own. Therefore, the State needed to present additional evidence connecting

Battle to the narcotics he has been accused of possessing. See Evans, 202

S.W.3d at 161–62; Poindexter, 153 S.W.3d at 406; Triplett, 292 S.W.3d at 208.

      As previously discussed, the only links tending to connect Battle to the

narcotics were: (1) he was in the vicinity of where the narcotics were

allegedly found; (2) he purportedly made a furtive gesture although the

video evidence does not support this assertion; (3) he was in a suspicious

place under suspicious circumstances; and (4) he has a prior drug history.

      By contrast, numerous factors tend to contradict the trial court’s

finding that Battle knowingly possessed the narcotics: (1) Millican claimed

ownership of the narcotics in a Facebook message (RR 74); (2) Millican

testified that the “it might have been a possibility” that the narcotics were

hers (RR 73-74); (3) the video evidence does not support the trial court’s

finding because it shows Battle with his hands in his pockets when the police

take him down—in other words, he did not have an opportunity to discard

any contraband (SX 1); (4) the length of time it took the officers to “find” the

two baggies in that small, uncluttered area of the living room contradicts the

State’s theory that Battle had discarded the contraband (SX 1); (5) the State

offered no affirmative testimony that anyone heard Battle agree to bring

Appellant’s Brief                                                        Page 34
Millican any narcotics; and (6) Battle’s fingerprints were not on the baggies.

(RR 100). In fact, counsel could go through the other 15 factors listed earlier

in the brief that do NOT tend to connect Battle to the narcotics, because each

of them tends to contradict the trial court’s finding. 11

      For these reasons, Battle contends that: (1) the evidence tending to

connect him to the narcotics “is so obviously weak as to undermine

confidence” in the trial court’s finding; or alternatively (2) the evidence

tending to connect him to the narcotics, “although adequate if taken alone,

is greatly outweighed by contrary proof . . . to the extent that the [finding of

guilt] is clearly wrong and manifestly unjust.” See Denny v. State, No. 13-00-

00510-CR, 2001 WL 34615524, at *3 (Tex. App.—Corpus Christi 2001, pet.

ref’d) (not designated for publication); White v. State, 890 S.W.2d 131, 139

(Tex. App.—Texarkana 1994, pet. ref’d); see also Johnson, 23 S.W.3d at 11;

Assiter, 58 S.W.3d at 747-48; Ward, 48 S.W.3d at 387.




11
      For clarity, the other 15 factors were those numbered 2-4, 6-13, and 15-18.


Appellant’s Brief                                                                   Page 35
D. The Court Must Reverse the Judgment and Remand for a New Trial.

      When the evidence is factually insufficient, the proper remedy is to

reverse the judgment of conviction and remand for a new trial. See TEX. R.

APP. P. 43.2(d); Clewis, 922 S.W.2d at 133-34; Denny, 2001 WL 34615524, at *3;

Assiter, 58 S.W.3d at 748; Ward, 48 S.W.3d at 387; White, 890 S.W.2d at 139.

      For these reasons, because the evidence is factually insufficient to

prove that Battle knowingly possessed the contraband, Battle asks the Court

to reverse the judgment of conviction for possession of methamphetamine

and remand this case for a new trial.




Appellant’s Brief                                                      Page 36
Third Issue:        The judgment incorrectly recites that Battle was
                    convicted of a first degree felony.

      The judgment recites that Battle was convicted of a first degree felony.

However, possession of between one and four grams of methamphetamine

is a third degree felony. The enhancement allegations have no bearing on

this issue. The judgment should be modified to accurately reflect the offense

of which Battle was convicted.


A. The Trial Court Must Enter a Proper Judgment.

      “On each verdict of acquittal or conviction, the proper judgment shall

be entered immediately.” TEX. CODE CRIM. PROC. art. 37.12. Among other

things, a “proper judgment” must reflect “[t]he offense or offenses for which

the defendant was convicted.” Id. 42.01, § 1(13); see Mitchell v. State, 942

S.W.2d 170, 173-75 (Tex. App.—Amarillo 1997, pet. ref’d).


B. No Objection is Required.

      Because article 37.12 imposes a sua sponte duty on the trial court to sign

and enter a “proper judgment,” a complaint regarding erroneous recitals in

the judgment cannot be forfeited by a failure to object in the trial court. See

Garner v. State, 214 S.W.3d 705, 706 (Tex. App.–Waco 2007, no pet.); Cobb v.



Appellant’s Brief                                                       Page 37
State, 95 S.W.3d 664, 666-67 (Tex. App.—Houston [1st Dist.] 2002, no pet.);

see also Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet.

ref’d) (“[A]n appellate court, on its own motion, can reform the judgment to

make the record speak the truth. In fact, it has a duty to do so, and such duty

is not dependent upon a request by either party or whether they objected

and preserved error in the trial court.”).


C. The Judgment is Not “Proper.”

      The indictment alleged that Battle possessed one gram or more but less

than four grams of methamphetamine, which is a third degree felony. (CR

5); see TEX. HEALTH & SAFETY CODE § 481.115(c). In fact, the indictment states

on its face that the offense charged was a third degree felony. (CR 5) At the

conclusion of the evidence, the trial court pronounced that it found Battle

“guilty of the offense of possession of a controlled substance,

methamphetamine, one gram or more, but less than four grams as alleged in

the indictment.” (RR 180) And the judgment recites that Battle was convicted

of this offense. (CR 32-33) However, the judgment erroneously recites that

Battle was convicted of a “1ST DEGREE FELONY.” (CR 32)




Appellant’s Brief                                                       Page 38
      The enhancement allegations do not change the analysis. Rather, the

enhancement allegations merely serve to enhance the applicable

punishment range to that for an habitual offender and do not change the

level of the underlying offense. See Martin v. State, 405 S.W.3d 944, 949-50

(Tex. App.—Texarkana 2013, no pet.).


D. This Court Must Correct the Judgment.

      Therefore, Battle asks the Court to modify the judgment to reflect that

the offense of which he was convicted was a third degree felony, not a first

degree felony. See TEX. R. APP. P. 43.2(b) (appellate court may modify the

trial court’s judgment); Garner, 214 S.W.3d at 707; Cobb, 95 S.W.3d at 668;

Asberry, 813 S.W.2d at 531.




Appellant’s Brief                                                     Page 39
                                 Prayer

      WHEREFORE,      PREMISES     CONSIDERED,       Appellant   Brandon

Bernard Battle asks the Court to: (1) reverse the judgment and render a

judgment of acquittal; (2) reverse the judgment and remand this case for a

new trial; (3) modify the judgment by modifying the provision describing

the degree of the offense of which he was convicted and correcting same;

and (4) grant such other and further relief to which he may show himself

justly entitled.

                                       Respectfully submitted,



                                          /s/ Alan Bennett
                                       E. Alan Bennett
                                       SBOT #02140700
                                       Attorney for Appellant

                                       Sheehy, Lovelace & Mayfield, P.C.
                                       510 N. Valley Mills Dr., Ste. 500
                                       Waco, Texas 76710
                                       Telephone:        (254) 772-8022
                                       Fax:        (254) 772-9297
                                       Email:      abennett@slmpc.com




Appellant’s Brief                                                  Page 40
                      Certificate of Compliance


      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 7,162

words.



                                           /s/ Alan Bennett
                                        E. Alan Bennett




                         Certificate of Service


      The undersigned hereby certifies that a true and correct copy of this

document has been served by e-mail on November 18, 2015 to counsel for

the State, B.J. Shepherd at 220thda@gmail.com.



                                           /s/ Alan Bennett
                                        E. Alan Bennett




Appellant’s Brief                                                   Page 41
