                                                                                   ACCEPTED
                                                                               03-15-00258-CR
                                                                                       7935468
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         11/20/2015 4:32:07 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK

               IN THE COURT OF APPEALS
                                                              FILED IN
                 FOR THE THIRD DISTRICT                3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                                                       11/20/2015 4:32:07 PM
                      AT AUSTIN, TEXAS                     JEFFREY D. KYLE
                                                                Clerk




STEPHANIE MAIE,                   §    CAUSE NO. 03-15-00258-CR
HEINTZLEMANN                      §     Trial COURT No. 42636
                Appellant
V.                                §
THE STATE OF TEXAS,               §
                Appellee          §

                       BRIEF OF APPELLANT
Appealed from the 33rd Judicial District Court, Burnet County, Texas
                   Honorable Alan Garrett, presiding
                                             Law Office of Alice E. Price
                                                     408 South Liveoak
                                                Lampasas, Texas 76550
                                                 Tel/Fax 512-556-4777
                                               State Bar No. 00786177
                                              apgregg50@hotmail.com
                                                 Attorney for Appellant

            APPELLANT HEREBY WAIVES ORAL ARGUMENT

                                                                           1
                            TABLE OF CONTENTS

                                                                      Page

Table of Contents                                                       2

Index of Authorities                                                    3

Identity of Parties and Counsel                                         4

Statement of the Case                                                   5

Issue Presented

The evidence is insufficient to support a conviction for possession     6
with intent to deliver, a controlled substance, methamphetamine,
in an amount of one to four grams. TEX. HEALTH & SAFETY CODE
§§481.112(a)(c), (West 2013), because there is no evidence of an
affirmative connection between the Appellant and the contraband
under the Link Doctrine.


Statement of Facts                                                      6

Summary of the Argument                                                 7

Argument                                                                8

Standard of Review                                                      12

Prayer                                                                  14

Certificate of Service and                                              15
of Compliance with Rule 9

                                                                             2
                         Index of Authorities


Authorities Page                                                  Page
                   Court cases United States Supreme

Jackson v. Virginia
     443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 550 (1979)   9

                 Texas Court of Criminal Appeals cases

Brooks v. State
323 S.W. 3d 893 (Tex.Crim.App.2010)                                9
Olivarez v. State
171 S.W.3d 283, 291 (Tex. App. Houston [14th Dist.] 2005, no pet. 9,11
Poindexter v. State
153 S.W.3d 402, 406 (Tex. Crim. App. 2005)                         10
Evans v. State
202 S.W.3d 158, 162 n. 12 (Tex. Crim. App. 2006)                   11
Taylor v. State
106 SW3d 827 (Tex. App.-Dallas 2003, no pet.)                      11
Wiley v. State
388 S.W.3d 807, 815 (Tex. App. – Houston [1st Dist.] 2012, pet.    11
Robertson v. State
80 S.W. 3d 730,735 (Tex. App- Houston [1st Dist.] 2002)            14

                                Statutes

TEX. HEALTH & SAFETY CODE §§481.112(a)(c), (West 2013)            5,6




                                                                         3
                      IN THE COURT OF APPEALS
                       FOR THE THIRD DISTRICT
                          AT AUSTIN, TEXAS

STEPHANIE MAIE HEINTZLEMANN,                     §
Appellant                             §
                                      §     CAUSE No. 03-15-00258-CR
V.                                    §     TRIAL COURT NO. 42636
THE STATE OF TEXAS,                   §
Appellee                              §

                 IDENTITY OF PARTIES AND COUNSEL

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW STEPHANIE MAIE HEINTZLEMANN, the Appellant
herein, and would show the court interested parties herein are as
follows:
      STEPHANIE MAIE HEINTZLEMANN, appellant, c/o/ Garza East Unit
4304 Highway 202 Beeville, TX 78102-8981

     Barton Vanna, trial attorney
For appellant, 101 High. 281 N, Suite 205C, Marble Falls, Texas 78654

    Alice Price, appellate attorney for appellant, 408 South Liveoak
Lampasas, Texas 76550

     Sonny McAfee, Burnet County District Attorney, and

     Gary Bunyard, Assistant District Attorney, Burnet, Texas



                                                                        4
                       IN THE COURT OF APPEALS
                        FOR THE THIRD DISTRICT
                           AT AUSTIN, TEXAS


STEPHANIE MAIE HEINTZLEMANN,            §
Appellant                               §
                                        §     CAUSE No. 03-15-00258-CR
V.                                      §     TRIAL COURT NO. 42636
THE STATE OF TEXAS,                     §
Appellee                                §

                        STATEMENT OF THE CASE

A jury in the 33rd Judicial District Court in and for Burnet County,

Texas, convicted STEPHANIE MAIE HEINTZLEMANN of possession, with

intent to deliver, a controlled substance, methamphetamine, in an

amount of one to four grams. TEX. HEALTH & SAFETY CODE

§§481.112(a)(c), (West 2013), (CR Vol.1, page 45). After a jury found

Heintzlemann guilty, it assessed her punishment at 9 years’

confinement in the Texas Department of Criminal Justice’s Institutional

Division. (CR Vol. 1 page 45). Appeal was subsequently perfected from

that verdict and sentence. (CR Vol. 1, page 70)


                                                                          5
                            ISSUE PRESENTED


The evidence is insufficient to support a conviction for possession with

intent to deliver, a controlled substance, methamphetamine, in an

amount of one to four grams. TEX. HEALTH & SAFETY CODE

§§481.112(a)(c), (West 2013), because there is no evidence of an

affirmative connection between the Appellant and the contraband

under the Link Doctrine.


                           STATEMENT OF FACTS

Background

     On February 15, at approximately 1:40 a.m., Officer Paul Chrane

initiated a traffic stop of a 1998 Pontiac grand am in Granite Shoals,

Texas. The vehicle was stopped due to a rolling stop and an expired

registration. (RR Volume 3 page 96)Upon identifying the occupants of

the car, it was determined that the driver, a Grant Cole, had multiple

warrants for his arrest. (RR vol. 3 page 97). At this point, a search was


                                                                            6
conducted on the car. In the center console, a black bag was discovered

containing a pipe which later would be confirmed as containing

methamphetamine residue. (RR vol. 3 page 99). An officer Decker

assisted the first officer with the search of the vehicle, and states what

he saw was a car” full of a bunch of items, bags, kind of bit of disarray,

and loaded up -- with just stuff.” (RR vol. 3, page 110). As the police

continue to search the vehicle, they come across a number of bags. (RR

vol. 3 page 115) Officer Decker states that the bags were described as a

“Knapsack, satchel, duffel. It was hard to describe specifically a style of

bag other than it was a manufactured black bag with a zipper style on

it. I believe one of the other ones had another style of closure to them.

But not a suitcase or briefcase or something of that. Just a bag.” (RR

vol. 3 page 115)During the search of the vehicle and through numerous

bags, other items were discovered. Such as a straw which had been cut

about a third in size, (RRvol.3 page 116) and inside a coin purse I

located two glass pipes, (RR vol. 3 page 118.)Other items recovered

were plastic baggies containing numerous small baggies with clear

                                                                              7
crystal substance inside. These were jeweler-style baggies, small zip-

style baggies, within a larger jewelry-style baggie. (RR vol. 3 page 121).

After these items were collected into evidence both occupants were

arrested and transported to the county jail for processing on possession

with intent to deliver , a controlled substance, methamphetamine.

                      SUMMARY OF THE ARGUMENT

To prove Ms. Heintzlemann guilty of possession with intent to deliver

methamphetamine, there must be evidence that establishes her care, custody

and control over the contraband discovered in the car. There is no question that

there was methamphetamine and other illegal items found in the car in which

Appellant was a passenger. This Court has to examine the evidence which tend to

connect Appellant to those items and balance them with factors that tend to

disprove Appellant possessed it.


Standard of Review

In a sufficiency review, a reviewing court examines the evidence in

the light most favorable to the verdict to determine whether any

rational fact-finder could have found the essential elements of the


                                                                                   8
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 61 L. Ed. 2d 550 (1979); Brooks v. State, 323 S.W.3d

893 (Tex. Crim. App. 2010). The fact-finder is the exclusive judge of the

facts, the credibility of the witnesses, and of the weight to be given

testimony. Brooks, 323 S.W. 3d at 899. Any evidentiary inconsistencies

are resolved in favor of the judgment. Id.


                               ARGUMENT

Viewing the evidence in this case in the light most favorable to the

verdict, a rational fact-finder could not have found beyond a reasonable

doubt that the defendant in this case was in exclusive possession of the

contraband found. When the accused is not in exclusive possession of

the place where the contraband is found, the State must show

additional affirmative links between the accused and the contraband.

See Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App. – Houston [14th

Dist.] 2005, no pet.). An affirmative link generates a reasonable

inference that the accused knew of the contraband’s existence and


                                                                            9
exercised control over it. See id. The “affirmative links” are designated

to protect the innocent bystander from conviction based solely on

fortuitous proximity to someone else’s drugs. Poindexter v. State, 153

S.W.3d 402, 406 (Tex. Crim. App. 2005). Thus, when the accused is not

in exclusive possession of the place where the substance is found, there

must be additional independent facts and circumstances that

affirmatively link the accused to the contraband. See id.

Courts have identified the following factors as affirmative links that

may link an accused to a controlled substance:

(1) the [accused’s] presence when a search is conducted; (2) whether

the contraband was in plain view; 3) the [accused’s] proximity to and

the accessibility of the [contraband]; (4) whether the [accused] was

under the influence of narcotics when arrested; (5) whether the

[accused] possessed other contraband or narcotics when arrested; (7)

whether the [accused] attempted to flee; (8) whether the [accused]

made furtive gestures; (9) whether there was an odor of contraband;

(10) whether other contraband or drug paraphernalia were present;

                                                                            10
(11) the [accused] owned or had the right to possess the place where

the drugs were found; (12) whether the place where the [contraband]

was found was enclosed; (13) whether the [accused] was found with a

large amount of cash; and (14) whether the conduct of the [accused]

indicated a consciousness of guilt, See, Evans v. State, 202 S.W.3d 158,

162 n. 12 (Tex. Crim. App. 2006)Evans, supra, n. 12; Olivarez v. State,

171 SW3d 283, 2914 (Tex.App.Houston [14th] 2005, no pet.); Taylor v.

State, 106 SW3d 827 (Tex. App.-Dallas 2003, no pet.)

It is the logical force of such links, rather than merely quantity that is

important in determining whether the evidence is sufficient to connect

the accused to the alleged contraband. Id. at 162. The list of affirmative

links is not exclusive. Id. Appellate courts do not balance the absent

affirmative links against the affirmative links that are present. See Wiley

v. State, 388 S.W.3d 807, 815 (Tex. App. – Houston [1st Dist.] 2012, pet.

ref’d). The number of these links, proved by independent facts, is less

important than the logical force by which they tend to affirmatively link

the accused to the contraband. Taylor, supra, at 831. Very few, if any,

                                                                             11
of these factors are present in this case, and any that are have little or

no “logical force” to link the appellant to the methamphetamine. Each

of these factors will be examining in turn.

1. The accused presence when search was conducted- Appellant was

present.

2. Contraband in plain view: It was not.

3. Accused was the owner of premises: It was an automobile, thus not

applicable.

4. Contraband accessible: The drugs were found in different bags

distributed throughout the vehicle. No contraband was found in the

purse of the appellant (RR Vol 3, page 133.)Both occupants of the car

had access to the bags.

4. Found in close proximity: Yes, but both occupants were in close

proximity to the bags.




                                                                             12
 { "pageset": "Sc1
                     5. Odor of methamphetamine: There was none. While one

officer said he smelled alcohol, there was no smell of

methamphetamine.

6. Paraphernalia in view or near Appellant: None was in plain sight.

7. The accused appeared to be a user: There is no evidence to this

point.

8. Conduct indicating consciousness of guilt: There is no evidence the

appellant did anything indicating guilt.

9. Connection between accused and contraband: The contraband was

found in the car where both occupants had been riding. No bag with

contraband was linked to the appellant as her sole property.

10. Place where found enclosed: The contraband was found in bags,

                                             { "pageset": "Sc1
various different bags in the vehicle.

11. Occupants gave conflicting statements as to relevant issues: No

evidence of that.




                                                                             13
12. Affirmative statements connecting Appellant to the drugs: There are

none.

13. Large amounts of cash: a fifty dollar bill, and a one dollar bill. (RR

vol. 3, page 125)

14. Flight or furtive gestures: Not only is there no evidence of these

factors, quite the opposite Appellant was very cooperative and gave

her consent to search the vehicle.

                                Conclusion

Appellant was not in exclusive possession of the contraband; Ms.

Heintzlemann was merely found in close proximity to the contraband.

Appellant was only a passenger in a vehicle that contained a controlled

substance. Because Appellant was not in exclusive possession of the

vehicle, additional facts and evidence must have been submitted to

affirmatively link; Ms. Heintzlemann to the contraband. See Roberson

v. State, 80 S.W.3d 730, 735 (Tex.App. - Houston [1st Dist.] 2002).



                                  Prayer

                                                                             14
WHEREFORE, STEPHANIE MAIE HEINTZLEMANN prays that this court

reverse the judgment of the trial court and render a judgement of

acquittal in this case or enter such other orders as it finds just and

appropriate in keeping with its findings herein.


                                                     Law Office of Alice E. Price
                                                             408 South Liveoak
                                                       Lampasas, Texas 76550
                                                         Tel/Fax 512-556-4777


                                                     By: /s/ Alice E. Price
                                                         Alice E. Price
                                                       St Bar No. 00786177
                                                       Attorney for Appellant




                  CERTIFICATE OF SERVICE AND OF
                    COMPLIANCE WITH RULE 9

            This is to certify that on November 20, 2015, a true and correct copy of
     the above and foregoing document was served on Gary Bunyard, Ass. District
     Attorney, Burnet County. P O Box 725 Llano, TX 78643, in accordance with
     the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in



                                                                                   15
compliance with Rule 9 of the Texas Rules of Appellate Procedure and that
portion which must be included under Rule 9.4(i)( 1) contains 13,799 words.




                                                _/s/_Alice E. Price ______
                                                    Alice E. Price




                                                                              16
