                                                                                     ACCEPTED
                                                                                12-13-00386-CR
                                                                    TWELFTH COURT OF APPEALS
                                                                                 TYLER, TEXAS
                                                                          2/10/2015 10:57:08 PM
                                                                                   CATHY LUSK
                                                                                         CLERK

                     Cause No. 12-13-00386-CR

                                                               RECEIVED IN
                                                         12th COURT OF APPEALS
                                                              TYLER, TEXAS
                  In the Court of Appeals for the
                                                         2/10/2015 10:57:08 PM
               Twelfth Judicial District at Tyler, Texas      CATHY S. LUSK
                                                                  Clerk



                          Willie Owens, III.,
                               Appellant                       2/10/2015

                                  v.

                           State of Texas,
                              Appellee



          On Appeal from Cause No. 2013-0215 in the 159h
           Judicial District Court of Angelina County, Texas



                            State’s Brief



                                       April Ayers-Perez
                                       Assistant District Attorney
                                       Angelina County D.A.’s Office
                                       P.O. Box 908
                                       Lufkin, Texas 75902
                                       (936) 632-5090 phone
                                       (936) 637-2818 fax
                                       State Bar No. 24090975
                                       aperez@angelinacounty.net

Oral Argument Not Requested
                      Identity of Parties and Counsel

Willie Owens, III., Appellant             Katrina Carswell
TDCJ #01899793                            Attorney for the State (trial)
Lyncher Unit                              Angelina County District Attorney’s
2350 Atascocita Road                         Office
Humble, Texas 77396                       P.O. Box 908
                                          Lufkin, Texas 75902
John D. Reeves
Counsel for Willie Owens, III.            April Ayers-Perez
      (trial)                             Attorney for the State (appeal)
1007 Grant Ave.                           Angelina County District Attorney’s
Lufkin, Texas 75901                             Office
                                          P.O. Box 908
Albert Charanza, Jr.                      Lufkin, Texas 75902
Counsel for Willie Owens, III.
      (appeal)
P.O. Box 1825
Lufkin, Texas 75902




                                     ii
                                         Table of Contents

Identity of Parties and Counsel ................................................................... ii

Table of Contents .......................................................................................iii

Index of Authorities ..................................................................................... v

Statement Regarding Oral Argument .........................................................vii

Issues Presented .......................................................................................vii

Statement of Facts ...................................................................................... 1

Summary of the Argument .......................................................................... 6

Argument .................................................................................................... 7

        Reply Issue #1: The evidence presented at trial was
        sufficient to corroborate the offenses............................................ 7

        Reply Issue #2: The evidence was legally sufficient to
        support the conviction .................................................................... 7

                 Standard of Review .................................................................. 9

                 Appellant had direct links to CI buy ......................................... 10

        Reply Issue #3:           The State did not fail to disclose
        exculpatory evidence, the evidence in the CI’s file was not
        exculpatory .................................................................................... 11

                 Standard of review .................................................................. 11

                 The file of the CI was not exculpatory ..................................... 13

                                                      iii
Prayer ....................................................................................................... 14

Certificate of Compliance .......................................................................... 15

Certificate of Service ................................................................................. 15




                                                       iv
                                       Index of Authorities

Cases                                                                                                Page

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2012) ........................... 9

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2004)................................ 8

Cruz v. State, 838 S.W.2d 682 (Tex. App. – Houston [14th Dist.] 1992,
     pet. ref’d) ......................................................................................... 12

Hampton v. State, 86 S.W.3d 603 (Tex. Crim. App. 2002) ........................ 12

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................... 9

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .............................. 8

Malone v. State, 253 S.W.3d 253 (Tex. Crim. App. 2008) ................... 10 ,11

Michaelwicz v. State, 186 S.W.3d 601 (Tex. App. – Austin, 2006) ............ 12

Scruggs v. State, 18 S.W.3d 277 (Tex. App.—Austin 2000, pet ref’d)....... 12

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013)..................... 9, 10

Whitchurch v. State, 650 S.W.2d 422 (Tex. Crim. App. 1983).................. 12


Statutes

Tex. Pen. Code Ann. § 39.14(West 2011). ............................................... 12



                                                     v
Rules

Tex. R. App. P. 39.1 ..................................................................................vii




                                                   vi
                     Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                 Issues Presented

      Reply Issue #1:      The evidence presented at trial was sufficient to

corroborate the offenses

      Reply Issue #2: The evidence was legally sufficient to support the

conviction


      Reply Issue #3: The State did not fail to disclose exculpatory evidence,

the evidence in the CI’s file was not exculpatory




                                        vii
                                                               Statement of Facts

              On several occasions in 2012 Officer Bob Scott and Investigator Scot

Hamel, both with the Lufkin Police Department, met with a confidential informant

(hereinafter referred to as “CI”) to purchase narcotics.1 This CI was known to

Officer Scott and had worked with Officer Scott on numerous other occasions with

numerous other individuals.2 On May 23, 2012 (Count III.) Officer Scott and

Investigator Hamel took part in a delivery between a CI and the appellant, Willie

Owens, III.3 Officer Scott and Investigator Hamel picked up the CI from his

residence, searched the CI for drugs and money, and then wired the CI with a

recording device.4 The CI was then given $160 by Officer Scott and Investigator

Hamel and then proceeded to call the appellant, who advised he would meet the CI

at Cherry’s grocery store.5 The CI usually referred to the appellant by a nickname,

some of which were “Big Boy” and “Fat Boy”.6 The appellant then proceeded to

change the meeting location to his residence, where Officer Scott dropped off the

CI a few blocks away from.7 Officer Scott, Investigator Hamel, and Sergeant




 
1
              V R.R. at 9-10.
2
              Id. at 25.
3
              Id. at 11.
4
              Id.
5
              Id.
6
              Id. at 12.
7
              Id. at 13.
                                                                       1
Anthony Mitchon were all listening to the recording device the CI was wearing.8

The CI signaled that the deal had been consummated, at which point Officer Scott

picked the CI up and the CI was searched for the drugs he bought and the money.9

The CI had no money on him, the entire $160 had been given to the appellant, and

the CI turned over the drugs to Officer Scott.10

              On June 5, 2012 (Count IV.) Officer Scott, Investigator Hamel, and Sergeant

Mitchon met with the same CI who stated he would call the same person from the

May 23, 2012 buy, “Fat Boy”, and purchase another $160 worth of crack.11

Officer Scott searched the CI while Sergeant Mitchon and Investigator Hamel

searched the CI’s vehicle.12 The CI then proceeded to call the same phone number

as on May 23, 2012 and met the appellant at the same residence in which he met

him on May 23, 2012.13 Once again, the CI went inside the residence with $160,

met with the appellant, and came back out with a controlled substance.14 Officer

Scott reviewed the audio and video recordings of the May 23, 2012 and June 5,

2012 incidents and found they both corroborated both what he said and what he




 
8
              Id. at 13-14.
9
              Id. at 15.
10
              Id. at 15-16.
11
              Id. at 17.
12
              Id.
13
              Id.
14
              Id. at 18-19.
                                                               2
remembers.15 Both the audio and video from May 23, 2012 and June 5, 2012 were

admitted into evidence.16

              Officer Scott confirmed that the CI was reliable and credible, and that in all

the instances the CI has been used in the past he had been truthful with the

Officers, never miscounted his money, and never came up short in his buys.17

Officer Scott estimated this CI had made around 100 buys for him in the past.18

              Investigator Scot Hamel then testified to the buys he was involved in, which

were all five counts that the appellant was indicted and convicted on – May 10,

2012 (Count I.), May 14, 2012 (Count II.), May 23, 2012 (Count III.), June 5, 2012

(Count IV.), and July 16, 2012 (Count V.).19 On May 10, 2012 Investigator

Hamel, after a transaction had been set up between the CI and the appellant, then

supplied the money to the CI, put the audio and video recorder on the CI, and

drove the CI to the location of the drug transaction.20 Investigator Hamel

confirmed that in the downloaded video and audio of the transaction none of the

audio and video was lost.21 The license plate of the vehicle that the buy took place




 
15
              Id. at 21.
16
              Id. at 25.
17
              Id. at 26-27.
18
              Id. at 34.
19
              Id. at 40-42.
20
              Id. at 44-45.
21
              Id. at 47.
                                                               3
in was traced back to the appellant.22 After the buy Investigator Hamel picked up

the CI and searched him for money and drugs after the CI handed over the drugs he

bought.23

              On May 14, 2012 (Count II), Investigator Hamel set up with the same CI as

in the previous cases and dropped him off at the same location as one of the

previous cases to make a buy with the appellant.24 After the buy took place and the

CI turned over the evidence, Investigator Hamel searched the CI and his car for

money and drugs and did not find either.25 Investigator Hamel also noted that the

CI used the same vehicle for this buy that he used for the first buy.26 After the CI

finished the buy, and turned over the controlled substance he purchased, the CI was

searched by Investigator Hamel, Sergeant Mitchon, and Officer Scott for drugs and

money, neither of which was found.27 Investigator Hamel also went into detail in

regards to the buy that occurred on July 16, 2012 (Count V.).28 This buy took

place at the appellants residence, where other buys alleged in the indictment also

occurred.29 Investigator Hamel explained that it is common for a dealer to start out

dealing to a person in a public place and then move to dealing from their residence,
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22
              Id. at 49.
23
              Id. at 49-50.
24
              Id. at 51-52.
25
              Id. at 52.
26
              Id. at 53.
27
              Id. at 54.
28
              Id. at 55.
29
              Id.
                                                               4
as has occurred with the appellant.30 The place of residence used during the buys

in counts III., IV., and V. were connected to the appellant because the water bill

was in the appellant’s name, then using the name that was on the water bill,

Investigator Hamel pulled up a photo and made a comparison to the video of the

buy, and it showed to be the same person.31 During the third buy, on May 23,

2012, the appellant pointed out which residence was his, which was the residence

used in the buys.32 During the buy that occurred on July 16, 2012 (Count V.), the

appellant did not have enough cocaine to constitute the one gram that was agreed

upon, so the CI paid only $90.33

              The CI did not have any pending cases with the District Attorney’s Office

and was not working covertly for law enforcement in exchange for any sort of

legal promise.34

              Valentine Hernandez, the CI used in all five of these counts, next testified.

Hernandez confirmed that Investigator Hamel, Officer Scott, and Lieutenant

Mitchon accompanied him on each of the five buys listed in the indictment for

which the appellant was convicted.35 In all five buys with which the appellant has

been convicted, Hernandez would call the appellant in the presence of law
 
30
              Id. at 55-56.
31
              Id. at 56.
32
              Id. at 57.
33
              Id. at 58-59.
34
              Id. at 73-74.
35
              Id. at 115-16.
                                                               5
enforcement and at the direction of law enforcement in order to set up the buy.36

Hernandez confirmed that not only did he set up all five buys with law

enforcement, but he met the appellant at the washateria for the buys in counts one

and two, and at the appellant’s house and vehicle for the remaining buys.37

Hernandez confirmed that in all five buys the appellant handed him the cocaine

directly, putting it directly in his hands.38 Hernandez also confirmed that while he

does get paid, monetarily, by law enforcement for his work as a CI, he also has an

objective to help get drugs off the street and that is one of the underlying desires

for him to continue helping law enforcement.39

                                                               Summary of the Argument

              The evidence presented at trial is sufficient to corroborate the offenses based

on informant testimony, it is legally sufficient to support a conviction on all five

counts for possession of a controlled substance with the intent to deliver, and the

State did not fail to produce exculpatory evidence to the defense.

              Although a CI was used to complete the drug buys from the appellant, the

buys were audio and video recorded and other factors besides just the CI testimony

and law enforcement testimony linked the appellant to the drug buys. The buys

occurred in a public place, in the appellant’s vehicle, and at the appellant’s home.
 
36
              Id. at 116.
37
              Id. at 119-25.
38
              Id. at 129.
39
              Id. at 139-40.
                                                                          6
Law enforcement was able to link the appellant to his vehicle through car

registration records, to the residence through property records, and was able to link

the appellant’s face through his driver’s license photograph. Furthermore, the

court was able to hear and view all of the buy videos, which were admitted into

evidence, and was able to directly link the picture and voice of the appellant.

      The appellant’s CI file used by law enforcement was not exculpatory. The

only information contained in it – the payment records of the     CI,   signing   of

waivers, and other CI names – was not exculpatory evidence. Further, all of the

information contained in the CI’s file was discussed extensively during trial by

both the State and the defense, as well as the CI and both law enforcement officers.

Even if disclosed to the appellant, the file would not have led to a reasonable

probability that the outcome would be any different.

                                     Argument

      Reply Issue #1: The evidence presented at trial is sufficient to

corroborate the offenses based on informant testimony and the testimony of

law enforcement officers

      Reply Issue #2: The evidence presented at trial is legally sufficient to

sustain a conviction on all five counts of possession of a controlled substance

with intent to deliver




                                          7
                                                               Standard of Review

              Sufficiency of the evidence in a bench trial is measured by a standard

analogous to the “hypothetically correct jury charge” standard, which includes the

statutory elements of the offense as modified by the charging instrument.40 Such a

charge would be one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.”41

              In this case, the charging instrument (indictment) alleged:


                                       COUNT I
              Defendant, on or about the 10th day of May, A.D. 2012, … did then
              and there, knowingly possess, with intent to deliver, a controlled
              substance; namely, cocaine, in an amount of less than one gram42
                                       COUNT II
              Defendant, on or about the 14th day of May, A.D. 2012, … did then
              and there, knowingly possess, with intent to deliver, a controlled
              substance; namely, cocaine, in an amount of gram or more but less
              than four grams43
                                       COUNT III
              Defendant, on or about the 23rd day of May, A.D. 2012, … did then
              and there, knowingly possess, with intent to deliver, a controlled
              substance; namely, cocaine, in an amount of one gram or more but
              less than four grams44
 
40
              Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Curry v. State, 30 S.W.3d
              394, 404 (Tex. Crim. App. 2004).
41
              Malik, 953 S.W.2d at 240.
42
              V R.R. at 5.
43
              Id. at 6.
44
              Id. at 7.
                                                                       8
                                       COUNT IV
              Defendant, on or about the 10th day of May, A.D. 2012, … did then
              and there, knowingly possess, with intent to deliver, a controlled
              substance; namely, cocaine, in an amount of one gram or more but
              less than four grams45
                                       COUNT V
              Defendant, on or about the 10th day of May, A.D. 2012, … did then
              and there, knowingly possess, with intent to deliver, a controlled
              substance; namely, cocaine, in an amount of less than one gram46

              The State must prove every element of the crime charged beyond a

reasonable doubt.47 In reviewing the legal sufficiency of the evidence to support a

conviction, the court considers the evidence in the light most favorable to the

verdict to determine whether the fact-finder was rationally justified in finding guilt

beyond a reasonable doubt.48 When evaluating the sufficiency of the evidence, the

court must presume the trier of fact resolved any conflicts in the evidence in favor

of the verdict and defer to that resolution.49

              A criminal conviction may be based upon circumstantial evidence and

circumstantial evidence alone can be sufficient to establish guilt.50              In

circumstantial evidence cases, not every fact and circumstance needs to point

“directly and independently to the defendant’s guilt.”51 If the conclusion is

 
45
              Id.
46
              Id. at 7-8.
47
              Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
48
              Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
49
              Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2012).
50
              Temple, 390 S.W.3d at 359.
51
              Id.
                                                               9
supported by the “combined and cumulative force” of all the incriminating

circumstances, the evidence is sufficient to establish guilt.52

                                                    Appellant Had Direct Links to CI Buy

              In Malone v. State the Court of Criminal Appeals held that, although the

accomplice testimony standard would be applied to cases involving confidential

informants, “[p]roof that the accused was at or near the scene of the crime at or

about the time of its commission, when coupled with other suspicious

circumstances, may tend to connect the accused to the crime so as to furnish

sufficient corroboration to support a conviction.”53 In the Malone case the non-

covert agent evidence (law enforcement testimony) established that the appellant

was searched prior to the buy for drugs or money, supplied with an audio

recording, driven to the buy location, provided with cash to purchase drugs,

returned to the law enforcement agents, and was further checked for drugs and

money.54 These series of events were enough to convince the Court of Criminal

Appeals that there was a sufficient link between the appellant and the delivery of

the controlled substance.

              In this case, the CI, Hernandez, was not only wired with an audio recorder,

as in the Malone case, but the CI also had a video recorder, both of which were

 
52
              Id.
53
              Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
54
              Id. at 258-59.
                                                                    10
admitted into evidence. Furthermore, like in Malone where there was a connection

with voices, the court was able to hear the voices in these tapes to determine if

there was a sufficient connection. On top of that, two of the buys occurred at the

residence of the appellant, just like in Malone, and one of the buys occurred in a

vehicle owned by the appellant. All of the buys came about after the CI called the

same phone number. This is sufficient to prove that the appellant was not just

“merely present” when the drug transaction was made, the audio and video

recordings prove that there is corroborating evidence to sufficiently link the

appellant to the five drug transactions as charged. Furthermore, differentiating this

case is that the CI, Hernandez, testified at the bench trial of appellant. When the

CI testified he corroborated all of the information that the law enforcement officers

– Investigator Hamel and Officer Scott – had testified to. Lastly, the appellant was

linked to the residence of the buys through the water bill, which was in his name,

and from there a driver’s license photo from the Department of Public Safety was

pulled up on the name of “Willie Owens, III.”, whom the water bill came back to,

and it matched the person in all five buy videos as well as the person sitting in

court identified as the defendant.55

              Reply Issue #3: The State did not fail to disclose exculpatory evidence,

the evidence in the CI’s file was not exculpatory
 
55
     Id. at 56.
                                                               11
                                                               Standard of Review

              There is no general right to discovery of evidence in the possession of the

State for a defendant in a criminal case.56 Under Article 39.14, limited statutory

discovery is allowed and has been provided for.57 However, whether or not

evidence is discoverable is a factor that has long been at the discretion of the trial

court.58 “To invoke Brady and its progeny, the accused must present evidence that

(1) the prosecution suppressed or withheld evidence; (2) the evidence would have

been favorable to the accused; and (3) this evidence would have been material to

the accused’s defense.”59 In light of Brady, the appellant would have the burden of

showing that, in light of the new evidence, it is reasonably probable that there

would be a different outcome at trial, had the prosecutor made a timely

disclosure.60 “A ‘reasonable probability’ is a probability sufficient to undermine

the confidence in the outcome of the trial.”61




 
56
        Michaelwicz v. State, 186 S.W.3d 601, 612 (Tex. App. – Austin, 2006), citing Scraggs v.
State, 18 S.W.3d 277, 294-95 (Tex. App. – Austin 2000, pet. ref’d).
57
        TEX. CODE. CRIM. PROC. ANN. art. 39.14 (West 2011).
58
        Michaelwicz v. State, 186 S.W.3d 601, 612 (Tex. App. – Austin, 2006), citing
Whitchurch v. State, 650 S.W.2d 422, 425 (Tex.Crim.App. 1983).
59
        Michaelwicz v. State, 186 S.W.3d 601, 612 (Tex. App. – Austin, 2006), citing Cruz v.
State, 838 S.W.2d 682, 686 (Tex. App. – Houston [14th Dist.] 1992, pet. ref’d).
60
        Michaelwicz v. State, 186 S.W.3d 601, 612 (Tex. App. – Austin, 2006), citing Hampton
v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)
61
        Id.
                                                                       12
                                                    The file of the CI was not exculpatory

              The file of the confidential informant contained payments made to the

informant by law enforcement, the names of other confidential informants (which

were redacted), file validation, CI’s understanding of regulations, CI’s biographical

information, and the CI’s consent to electronic surveillance.62 Appellant argues

that the CI began working for law enforcement in 2008 as opposed to 2012, and

that the CI was paid for his work with law enforcement and worked with law

enforcement prior to making his buys with the appellant.                                     However, the CI,

Hernandez, testified at trial that he was paid by law enforcement for his work as a

CI.63 Officer Bob Scott also testified that the CI, Hernandez, was paid for his work

as a CI with law enforcement.64 Investigator Scot Hamel also testified that the CI,

Hernandez, was paid for his work as a CI with law enforcement.65                                      Further,

Investigator Hamel testified that this was not the first buy that law enforcement had

done with the CI, “Every time that we used the informant [Hernandez], we used

him for a year or two, and everything that he’s done and brought back and told us,

we’ve substantiated through evidence that we got on the video and the names and

everything, the cases that we were provided that he worked. Everything he said


 
62
              C.R. at 87-97.
63
              V R.R. at 130, 139.
64
              Id. at 25.
65
              Id. at 72.
                                                                     13
always matched up.”66 The information found in the CI’s file, his payments and

amount of time working as a CI, was all brought up during the trial and cross-

examined by the appellant. Therefore, even if this court were to find that the CI’s

file was exculpatory, there is no reasonable probability that the outcome of the trial

would have been any different had the CI’s file been disclosed, because the

contents of the file were discussed extensively throughout the trial in regards to

payment to the CI and the amount of time the CI had worked with law enforcement

as a CI.

                                                               Prayer

              The State of Texas prays that this Court of Appeals affirm the judgment of

the trial court.




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66
              Id. at 75.
                                                                 14
                                                Respectfully Submitted,

                                                 /s/ April Ayers-Perez
                                                Assistant District Attorney
                                                Angelina County D.A.’s Office
                                                P.O. Box 908
                                                Lufkin, Texas 75902
                                                (936) 632-5090 phone
                                                (936) 637-2818 fax
                                                State Bar No. 24090975
                                                ATTORNEY FOR THE
                                                STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 3,189 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

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


                                                /s/ April Ayers-Perez


                                Certificate of Service

      I certify that on February 10, 2015, a true and correct copy of the above

document has been forwarded to Albert J. Charanza, Jr., counsel Willie Owens, III.

on appeal, at P.O. Box 1825 Lufkin, Texas, 75902, via electronic service through

efile.txcourts.gov.


                                                /s/ April Ayers-Perez

                                           15
