                                                                              AP-77,056
                                                           COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
May 7, 2015                                                Transmitted 5/6/2015 5:04:28 PM
                                                             Accepted 5/7/2015 8:22:00 AM
                                                                            ABEL ACOSTA
                   CASE NOS. AP – 77,056, 77,057, 77,058                            CLERK



              IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                            AUSTIN, TEXAS



                         CRAIG ROSS SHEPHARD,
                                      Appellant

                                    VS.

                          THE STATE OF TEXAS,
                                      Appellee


                        On Appeal from denial of bail
                    Cause Nos. 1383239, 1461069, 1461070

                          BRIEF OF APPELLANT


                                   JAVIER O. MARTINEZ
                                   BIRES SCHAFFER & DEBORDE
                                   TBA No. 24082538
                                   712 MAIN ST., SUITE 2400
                                   HOUSTON, TEXAS 77002
                                   TELEPHONE: 713-228-8500
                                   FACSIMILE: 713-228-0034
                                   EMAIL: JAVIER@BSDLAWFIRM.COM

                                   COUNSEL FOR APPELLANT,
                                   CRAIG ROSS SHEPHARD



                       ORAL ARGUMENT WAIVED




                                     1
                    IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.1(a), a complete list of the names and all

interested parties is provided below.


Appellant:                      Craig Ross Shephard

Presiding Judge:                Hon. Susan Baetz Brown
                                Presiding Judge
                                185th District Court, Harris County, Texas
                                1201 Franklin, 17th Floor
                                Houston, TX 77002

Trial Prosecutor:               Mr. Justin Keiter
                                Assistant District Attorney
                                Harris County District Attorney’s Office
                                1201 Franklin
                                Houston, Texas 77002

Defense Counsel:                Javier O. Martinez
                                Attorney at Law
                                Bires Schaffer & Deborde
                                712 Main St., Suite 2400
                                Houston, Texas 77002

State’s Appellate Counsel:      Hon. Devon Anderson
                                Harris County District Attorney
                                1201 Franklin
                                Houston, Texas 77002

Appellant’s Counsel:            Javier O. Martinez
                                Attorney at Law
                                Bires Schaffer & DeBorde
                                JPMorgan Chase Bank Building
                                712 Main Street, Suite 2400
                                Houston, Texas 77002

                                         2
                      TABLE OF CONTENTS

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

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

Index of Authorities………………………………………….……………………..4

Statement of the Case……..………………………………………………………..6

Statement of Facts………………………………….………………………………8

Argument………………………...………………………………………..………11

Point of Error Number One……………………………………………………….13

        The trial court erred in holding Appellant at no bond
        in Cause No. 1383239 since that case does not fall
        within one of the limited exceptions of Section 11a and
        a written no bond order was not entered.

Point of Error Number Two…………………………………………………...…..15

        The trial court erred in ordering that appellant be
        held without bail in Cause Nos. 1461069 & 1461070
        since the state failed to prove by a substantial showing
        that Appellant committed the instant offenses by
        using a deadly weapon after being convicted of a prior
        felony.

Prayer for Relief…………………………………………………………………..28

Certificate of Compliance…………………………………………………………29

Certificate of Service………………………………………………….…………..30




                                   3
                         INDEX OF AUTHORITIES

Cases

Castillo v. State, 426 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2012)…..18, 21

Coleman v. State, 145 S.W.3d 649, 659 (Tex. Crim. App. 2004)…….18, 22, 23, 24

Criner v. State, 878 S.W.2d 162 (Tex. Crim. App. 1994)……………………..….11

Ex Parte Davis, 574 S.W.2d 166, 168 (Tex. Crim. App. 1978)………………..…11

Ex Parte Laday, 594 S.W.2d 102, 104 (Tex. Crim. App. 1980)……..…..……….14

Ex Parte Miles, 474 S.W.2d 22 (Tex. Crim. App. 1971)………………………....11

Ex Parte Moore, 594 S.W.2d 449 (Tex. Crim. App. 1980)………………………16

Ex Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992)…………………….…..26

Gale v. State, 998 S.W.2d 221(Tex. Crim. App. 1999)………………….……22, 24

Jackson v. State, 857 S.W.2d 678 (Tex. App. – Houston [14th Dist.] 1993,

rehearing denied)………………………………………………..……...…18, 19, 20

Lee v. State, 683 S.W.2d 8 (Tex. Crim. App. 1985)…………………………...….16

Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)………………..18

Taylor v. State, 667 S.W.2d 149 (Tex. Crim. App. 1984)…………………….…..11

United States v. Ceballos-Torres, 218 F.3d 408, 414 (5th Cir. 2000)……...…18, 22

Westbrook v. State, 753 S.W.2d 158, 160 (Tex. Crim. App. 1988)…………..11, 15




                                        4
Statutes:

Tex. Const. art. I § 11a …………………………..…………..…...……………ibid.




                            5
TO THE COURT OF CRIMINAL APPEALS:

                              STATEMENT OF THE CASE

       Craig Ross Shephard, hereinafter Appellant, was arrested on March 13, 2015

pursuant to a “to-be” warrant 1. On March 14, 2015, the State of Texas filed two

charges against Appellant. One charged him with possession with intent to deliver

a controlled substance, namely methamphetamine, weighing at least 400 grams in

Cause No. 1461069. (I C.R. 2 2). The other charge was possession of a prohibited

firearm in Cause No. 1461070. (II C.R. 2). The State filed a motion to hold

Appellant at no bond on Cause No. 1461069. (I C.R. 6). The State’s basis for

holding Appellant at no bond was that Appellant “committed the instant offense

using a deadly weapon after being convicted of a felony” and that he was accused

of a “violent or sexual offense” while under supervision of a criminal justice

agency of the State. (I C.R. 6). On March 17, 2015, the State filed a motion to

adjudicate Appellant’s guilt on Cause No. 1383239 (III C.R. 92-93)3.




1
  The offense charged in the “to be” warrant was undetermined at the hearing. A complaint on
this “to-be” warrant has not been filed. The charge(s) that are the basis for the arrest warrant are
unrelated to the charges that are the subject of this appeal, i.e. Cause Nos. 1383239, 1461069 &
1461070.
2
  Because there are three “Volume I” clerk’s records for Appellant’s three cases, each record will
be separated numerically. Clerk’s Record for Cause No. 1461069 will be identified as “I.”
Clerk’s Record for Cause No. 14610870 will be identified as “II.” Clerk’s Record for Cause No.
1383239 will be identified as “III.”
3
  Appellant had been previous placed on 8 years deferred adjudication in December 9, 2013 for
possession with intent to deliver a controlled substance. (III C.R. 78-79).


                                                 6
      On March 19, 2015, Appellant was brought before the court for a bond

hearing pursuant to Article I § 11a of the Texas Constitution. At that time,

Appellant filed a motion to set bond on Cause No. 1461069 & 1461070, requesting

a collective bond of forty thousand dollars. (I C.R. 7-11) (II C.R. 6-10). At the

beginning of the hearing, the trial court notified Appellant’s counsel that there

“should be no bond on all three cases.” (I R.R. 5). Therefore, the trial court

entertained a no bond hearing on the motion to adjudicate guilt as well. Id. At the

conclusion of the hearing, Appellant was held without bond on all three cases. (I

R.R. 52).

      Appellant subsequently filed a timely appeal challenging the trial court’s no

bond order on all three cases. (I C.R. 18-19) (II C.R. 17-18) (III C.R. 96-97).




                                          7
                                 STATEMENT OF FACTS


         Deputy Perez was the sole witness for the State at Appellant’s hearing to

hold him without bail. (I R.R. 3). Deputy Perez is employed by the Harris County

Sherriff’s Office and is assigned to the HIDTA 4 task force. (I R.R 2). According to

Deputy Perez’s testimony, the HIDTA task force had been investigating

Appellant’s alleged criminal activities as early as January 2015. (I R.R. 12-13).

Most of the investigation centered on 811 Aldine Mail Route, Unit 500, Houston,

Harris County, Texas.

                  First Search Warrant for 811 Aldine Mail Route, Unit 500

         Deputy Perez testified that “at some point” law enforcement obtained a

“pocket warrant for the arrest of Craig Shephard.” (I R.R. 16). Later, on March 12,

2015, law enforcement obtained a “search warrant” for the body of Craig Ross

Shephard (I R.R. 19). The search warrant gave law enforcement the authority to

search 811 Aldine Mail Route Road, Suite 500, Houston, Harris, County, Texas for

Appellant. (I R.R. State’s Exhibit 7). The search warrant was executed on March

12, 2015. (I R.R. 32). When law enforcement entered the warehouse, a Ford F-150

that Appellant had been seen driving previously was found inside the warehouse

with several Pelican boxes that had lids on them. (I R.R. 36). A search of the

warehouse was done to attempt to locate Appellant but he was not there. (I R.R.

4
    HIDTA stands for High Intensity Drug Trafficking Area. Id.


                                                8
33). During the search, authorities located “residue” and a “methamphetamine

pipe.” (I R.R. 32). No weapons were found during the execution of the search

warrant for the body of Appellant. (I R.R. 33).

            Second Search Warrant for 811 Aldine Mail Route, Unit 500

      That same day, law enforcement obtained a second search warrant giving

them authority to search the interior of Suite 500 and the black Ford F-150 and its

contents. (I. R.R. State’s Exhibit 8). Once again, Appellant was not present at Suite

500 during the execution of the second search warrant. (I R.R. 34). Deputy Perez

testified that he had no idea where Appellant was located at that time. (I R.R. 34).

According to Deputy Perez, the black Ford F-150 was parked inside the

warehouse. (I R.R. 33). It was readily moveable and not broken down. Id.

      During the execution of the search warrant, methamphetamine and a shotgun

were located. (I R.R. 35-36). However, Deputy Perez did not find either of these

items Id. Deputy Perez testified that another officer “showed” him the

methamphetamine “on top of the counter” after it had been found. (I R.R. 35-36).

But, he could not testify as to the exact location where the methamphetamine was

found. Additionally, Deputy Perez could not testify as to whether or not the

shotgun was found locked in a case since he did not find it either. (I R.R. 36). He

found another weapon. (I R.R. 36-37).




                                          9
        Appellant Arrested The Next Day, Far From 811 Aldine Mail Route,
                                 Unit 500


      On March 13, 2015, a day after the execution of both search warrants,

Appellant was arrested. (I R.R. 25). He was arrested at a motel about “10-15”

minutes away from the Aldine Mail Route location (I R.R. 37). Appellant was not

in possession of any weapons during his arrest. (I R.R. 37). He did not have any

methamphetamine on him either. Id.




                                       10
                                        ARGUMENT


       The general rule favors the allowance of bail. Ex Parte Davis, 574 S.W.2d

166, 168 (Tex. Crim. App. 1978). However, there are limited exceptions to this

general rule when an accused is charged in a non-capital case5. See generally Tex.

Const. art. I § 11a. Even in a case that falls under one of these exceptions,

however, an order denying the defendant bail is not automatic. See Ex Parte Miles,

474 S.W.2d 22 (Tex. Crim. App. 1971) (holding that an accused is entitled to

confront the witnesses against him at a hearing within 7 days of arrest). In a non-

capital case, bail may be denied only after a hearing where the State produced

evidence substantially showing the Applicant’s guilt. Criner v. State, 878 S.W.2d

162 (Tex. Crim. App. 1994) (emphasis added). An order denying bail must be in

writing to be valid. Westbrook v. State, 753 S.W.2d 158, 160 (Tex. Crim. App.

1988).

       The State moved the trial court to hold Appellant with no bond because they

alleged Appellant was accused of a felony less than capital in this State involving

the use of a deadly weapon after being convicted of a felony pursuant to § 11a(3).

Tex. Const. art. I § 11a(3). (I C.R. 6). Additionally, the State moved for no bond

since they alleged Appellant was accused of “a violent or sexual offense

5
 These exceptions to the constitutional right to bail “include the seeds of preventive detention
urged by many to be abhorrent to the American system of justice.” Taylor v. State, 667 S.W.2d
149 (Tex. Crim. App. 1984).


                                                11
committed while under supervision of a criminal justice agency of the State or a

political subdivision of the State for a prior felony” pursuant to § 11a(4). Tex.

Const. art. I § 11a(4). (I C.R. 6). Only a written order was entered in Cause Nos.

1461069 & 1461070, which are the possession with intent to deliver

methamphetamine and the possession of a prohibited weapon charges,

respectively. (I C. R. 10) (II C.R. 10). The order on Cause No. 1461070 was done

on the motion to set bond filed by Appellant not the State’s motion to deny bail. (II

C.R. 10). The State did not file a motion to deny bail under Cause No. 1461070.

      The trial court erred in holding Appellant at no bond on all three cases. With

respect to the motion to adjudicate charge, Cause No. 1383239, bail is mandatory

in that case since it does not fall under one of the limited exceptions of § 11a. Tex.

Const. art. I § 11a. Additionally, a written order to hold Appellant without bond

was not entered for this case. With respect to the possession with intent to deliver

methamphetamine charge in Cause No. 1461069, and the possession of a

prohibited weapon charge in Cause No. 1461070, the State did not produce a

substantial showing of Applicant’s guilt - namely that Appellant committed a

“felony less than capital in this State involving the use of a deadly weapon after

being convicted of a prior felony.” Tex. Const. art. I § 11a(3). In these two cases,

the State failed to produce a substantial showing that Appellant (1) committed the

offenses of possession with intent to deliver a controlled substance and possession



                                          12
of a prohibited firearm; and (2) that he used a deadly weapon during the

commission of the felonies in which he is accused of. As a result, the no bond

orders should be set aside and a reasonable bail should be set on all three cases.

                            POINT OF ERROR ONE

      THE TRIAL COURT ERRED IN HOLDING APPELLANT AT NO BOND
      IN CAUSE NO. 1383239 SINCE THAT CASE DOES NOT FALL
      WITHIN ONE OF THE LIMITED EXCEPTIONS OF SECTION 11A AND
      A WRITTEN NO BOND ORDER WAS NOT ENTERED.


      Under Article I § 11a(4) an accused may be held without bail if he or she is

“accused of a violent or sexual offense committed while under the supervision of a

criminal justice agency of the State or political subdivision of the State for a prior

felony.” Tex. Const. art. 11a(4). Article I § 11a defines violent offense to mean (a)

murder; (b) aggravated assault, if the accused used or exhibited a deadly weapon

during the commission of the assault; (c) aggravated kidnapping; and (d)

aggravated robbery. Tex. Const. art. 11a. Article I § 11a defines “sexual offense”

as (a) aggravated sexual assault, (b) sexual assault; or (c) indecency with a child.

Tex. Const. art. 11a.

      In this instance, the State filed a motion to adjudicate guilt on March 17,

2015 under Cause No. 1383239. (III C.R. 92-93). Appellant was on deferred

adjudication out of the 185th District Court for possession with intent to deliver a

controlled substance. Id. The allegation in the motion to adjudicate guilt was that



                                          13
he “possessed a short barrel firearm.” Id. There were also some other technical

violations not relating to any “sexual” or “violent” offenses. Id.

      A motion to adjudicate guilt based on an underlying possession with intent

to deliver a controlled substance charge is not an accusation involving a “violent

offense” or “sexual offense” as defined in Article I, § 11a. Tex. Const. art. 11a.

Additionally, the allegation in the motion to adjudicate that he “possessed a short

barrel firearm” is also not a “violent” or “sexual” offense under Article I, § 11a.

Any way you slice it, the trial court erred in holding Appellant at no bond in Cause

No. 1383239 based on Article I, § 11a.

      The controlling law regarding bail in motions to adjudicate guilt can be

found in Ex Parte Laday. In Ex Parte Laday, this Court held that “a defendant

whose adjudication of guilt has been deferred has not yet been convicted.” Ex

Parte Laday, 594 S.W.2d 102, 104 (Tex. Crim. App. 1980).             The court went on

to state, "such a defendant is entitled to bail pending an adjudication hearing.” Id.

Appellant’s case should be decided pursuant to Ex Parte Laday, supra.

      Additionally, the court did not enter a written order to hold Appellant

without bail in Cause No. 1383239. At the beginning of the hearing, the trial court

advised Appellant’s counsel that counsel had not filed a motion to set bond in

Cause No. 1383239. (I R.R. 5). After some discussion the trial court stated that

“there should be no bond on all three cases” and that the court would “include” the



                                          14
motion to adjudicate as part of the hearing. Id. At the end of the hearing, the trial

court stated “at this point I am going to grant the State’s motion to hold the

defendant at no bond. Certainly I will revisit that, as required by law, in 60 days

and at that point I will set bonds in all of these cases.” (I R.R. 52). However, no

written order was ever entered. In Westbrook v. State, this Court found that an

order denying Appellant bail must be in writing to be valid. Westbrook v. State,

753 S.W.2d 158, 160 (Tex. Crim. App. 1988). As a result, the trial court’s order to

hold Appellant at no bond is unlawful under this rationale as well. Therefore,

Appellant requests that a reasonable bail be set for Cause No. 1383239.

                               POINT OF ERROR TWO

      THE TRIAL COURT ERRED IN ORDERING THAT APPELLANT BE
      HELD WITHOUT BAIL IN CAUSE NOS. 1461069 & 1461070 SINCE
      THE STATE FAILED TO PROVE BY A SUBSTANTIAL SHOWING
      THAT APPELLANT COMMITTED THE INSTANT OFFENSES BY
      USING A DEADLY WEAPON AFTER BEING CONVICTED OF A
      PRIOR FELONY.


      One of the limited exceptions to holding a defendant without bail under

Article I, § 11a of the Texas Constitution states that an accused may be held

without bail if he or she is “accused of a felony less than capital in this State

involving the use of a deadly weapon after being convicted of a prior felony.” Tex.

Const. art. 11a(3). If the state wishes to detain a defendant without bail under this

theory, the burden of proof the State shoulders in a proceeding seeking to deny bail



                                         15
under Article I, Section 11a, is a “substantial showing” of the guilt of the accused.

Lee v. State, 683 S.W.2d 8 (Tex. Crim. App. 1985). When the State seeks to have

bail denied under the provisions of Section 11a, the burden is on the State to show

that there has been compliance with the strict limitations and safeguards within that

section. Id. The courts have always kept in mind that the general rule favors the

allowance of bail. Davis, 574 S.W.2d at 168.

   Under this theory, for Appellant’s purposes, in Cause No. 1461069, the State

would have to prove by a “substantial showing” that the accused committed the

instant offense, possession with intent to deliver methamphetamine, by using a

deadly weapon after being convicted of a felony. See generally Ex Parte Moore,

594 S.W.2d 449 (Tex. Crim. App. 1980). Also, the State would have to prove by a

“substantial showing” that Appellant committed the instant offense, possession of a

prohibited weapon in Cause No. 1461070, by using a deadly weapon after being

convicted of a felony. Id.

   a. Cause No. 1461069 – Possession with intent to deliver a controlled
      substance charge.

   In order for the trial court to hold Appellant without bail under Cause No.

1461069, the State had to burden to prove by a “substantial showing” that

Appellant committed the felony offense of possession with intent to deliver

methamphetamine while using a deadly weapon, after being convicted of a prior




                                         16
felony 6 . See generally Tex. Const. art. 11a(3). The first prong the State has to

prove by a substantial showing is that Appellant is guilty of the offense of

possession with intent to deliver methamphetamine. Appellant suggests that the

State failed to prove by a substantial showing that he committed the offense of

possession with intent to deliver methamphetamine. He was not present at the

warehouse when the drugs were found. (I R.R. 34). Other than Deputy Perez’s

testimony, there were no other affirmative links to connect Appellant to the

warehouse. A truck belonging to Appellant was there but Deputy Perez did not

testify that he saw Appellant driving it in the days leading up to the search or that

day. Appellant contends that the State has failed to satisfy the first prong of the

statute.

    The second prong the State has to prove is that Appellant “used” a deadly

weapon during the commission of the offense. Parties in criminal cases have

largely litigated the “use” of a deadly weapon over the years. Most of the time, this

issue litigated is with regard to deadly weapon paragraphs. Therefore, examples of

how the courts define the term “use” in those cases should be instructive for

Appellant’s case.



6
  Assuming, arguendo, that this Court finds that State’s Exhibit 1 is sufficient to hold that
defendant had been previously convicted of a prior felony, this brief will primarily address the
issue of whether the State proved by a substantial showing that Appellant committed a felony
less than capital involving the “use” of a deadly weapon pursuant to Article I, §11a(3).


                                              17
       “Use” of a deadly weapon typically means that the deadly weapon must be

“utilized, employed, or applied in order to achieve its intended result ‘the

commission of a felony offense or during immediate flight therefrom,’ “that “use”

could mean “any employment of a deadly weapon, even simple possession, if such

possession facilitates the associated felony.” Patterson v. State, 769 S.W.2d 938,

941 (Tex. Crim. App. 1989). Mere presence of a weapon is not enough. Unites

States v. Ceballos-Torres, 218 F.3d 408, 414 (5th Cir. 2000) (rejecting the position

that “mere presence” or proximity test which “is one based on generality – anytime

a drug dealer possesses a gun, that possession is in furtherance, because drug

dealers generally use guns to protect themselves and their drugs. What is instead

required is evidence more specific to the particular defendant, showing that his or

her possession actually furthered the drug trafficking offense”). Some factors the

courts have looked at to determine whether a defendant “used” a deadly weapon

include (1) the type of gun involved 7; (2) whether or not the gun was loaded 8; (3)

the proximity of the gun to the drugs 9; (4) whether the Defendant was present

during the search of the premises 10. They will be discussed below.




7
  Coleman v. State, 145 S.W.3d 649, 659 (Tex. Crim. App. 2004)(Cochran, J., concurring).
8
  Id.
9
  Castillo v. State, 426 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2012).
10
   Jackson v. State, 857 S.W.2d 678 (Tex. App. – Houston [14th Dist.] 1993, rehearing denied).


                                               18
      1. The fact that Appellant was not present during the execution of both
      search warrants weighs in favor of the argument that Appellant did not
      “use” a deadly weapon during the commission of the instant offense.


      In Jackson v. State, a jury convicted the defendant of possession of cocaine

with an affirmative finding on the use of a deadly weapon. Jackson v. State, 857

S.W.2d 678 (Tex. App. – Houston [14th Dist.] 1993, rehearing denied). In Jackson,

Houston Police Department officers executed a search warrant and entered

defendant’s home at 1705 West Street. Id. at 682. When the search warrant was

executed, the Appellant was across the street playing dominos. Id. Inside the home,

the police found crack cocaine and six guns. Id. The court found that there was no

evidence that the guns were “used” or “exhibited”; they were merely found. Id.

The court stated “Appellant was not in the residence when the search warrant was

executed, and was not seen in the residence when the officers visited the house and

obtained the information that made the basis of the search warrant.” Therefore, the

court found that the evidence was insufficient to support a finding that Appellant

“used” a deadly weapon during the commission of a felony. Id.

       Appellant’s case is similar to Jackson v. State. The testimony at the hearing

showed that on March 12, 2015, two separate search warrants were executed at 811

Aldine Mail Route, Unit 500, Houston, Harris County, Texas. (I R.R. 32, 34). Like

Jackson, Appellant was not present during the execution of the first search




                                         19
warrant 11. No guns were found during the first search warrant. (I R.R. 33). Other

than residue, no significant amount of methamphetamine was found either. (I R.R.

32).

     That same day, March 12, 2015, the second search warrant was executed at 811

Aldine Mail Route, Unit 500. (I R.R. 34). Like Jackson, Appellant was not present

at the warehouse during the execution of the second search warrant either. (I R.R.

34). In fact, Deputy Perez testified that he had “no idea” where Appellant was. (I

R.R. 34). The following day, on March 13, 2015, Appellant was arrested “10-15”

minutes from where the warehouse was located. (I R.R. 37). He had no weapons

on him. (I R.R. 37). He had no drugs on him. (I R.R. 37).

     Appellant’s case is analogous to Jackson, therefore, Appellant contends that the

trial court erred in concluding that the State “substantially showed” that Appellant

used a deadly weapon during the commission of a felony offense after being

convicted of a prior felony. Therefore, the no bond order should be vacated and

Appellant should be entitled to a reasonable bond in Cause No. 1461069.

     2. The state failed to prove by a “substantial showing” that the
     methamphetamine was in close proximity to the weapons.




11
  Similar to Jackson, an inference can be made that the information that formed the basis of the
second search warrant was obtained during the first search warrant execution since the
warehouse contained methamphetamine residue and there was a methamphetamine pipe. (I R.R.
32).


                                              20
   A factor this Court may take into consideration when deciding whether

Appellant “used” a deadly weapon during the commission of the offense is

whether the drugs were in close proximity to the weapons. Castillo v. State, 426

S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2012). At the hearing, Deputy Perez

testified that he did not find the methamphetamine. (I R.R. 35-36). He stated that

another officer “showed” him the methamphetamine “on top of the counter” after it

had been found. (I R.R. 35-36). Deputy Perez had no personal knowledge as to the

location of the methamphetamine. Without any testimony as to where the

methamphetamine was, before it was found, in relation to where the weapons were

found, the State has failed to prove by a “substantial showing” that Appellant

“used” a deadly weapon during the commission of the felony offense of possession

with intent to deliver methamphetamine. This factor weighs in favor of the

argument that the State failed to prove by a “substantial showing” that the

Appellant “used” a deadly weapon during the commission of a felony after being

convicted of a prior felony.

   3. The storage and placement of the weapons suggest that Appellant did
   not “use” a deadly weapon.


   More importantly, the manner in which the weapons were stored and their

location, on the bed of the truck, shows that Appellant did not use the weapons




                                        21
during the commission of the instant offense or that his “possession 12” actually

furthered the drug trafficking offense. Ceballos-Torres, 218 F.3d at 414. Deputy

Perez stated that he found “several weapons” in the bed of the truck within the

Pelican cases. (I R.R. 23). He did not know whether those Pelican cases were

locked or unlocked. (I R.R. 36). However, he knew that they had lids on them. (I

R.R. 36). He also testified that the truck was a moveable object that was not broken

down. (I R.R. 33).

       Given that the weapons were stored inside “Pelican boxes,” in a “moveable

object” that was not “broken down” suggests that they were not located there as a

permanent fixture. This situation is different from where, let’s say, the guns are in

a closet, could be fired in seconds, and next to illicit contraband. See Gale v. State,

998 S.W.2d 221(Tex. Crim. App. 1999) (holding that all weapons were inches

away from the contraband and its illegal proceeds and although the guns were

unloaded they could be loaded in seconds). Appellant’s specific situation is unlike

what Courts have referred to as the “fortress theory.” See Coleman v. State, 145

S.W.3d 649, 658 (Tex. Crim. App. 2004) (Cochran, J., concurring) (explaining that

guns that are available to protect drug trafficker’s premises, should anyone attempt

to steal the valuable product inside or disrupt the ongoing operations, are “used” to

facilitate the illicit drug enterprise).

12
  Assuming, arguendo, that this court finds, based on the evidence presented at the hearing, that
the State sufficiently showed that Appellant “possessed” the weapons in question.


                                               22
   Given that the weapons were not accessible to Appellant, since he was not

there; that they were found stored in Pelican boxes in a truck that was not broken

down; and not easily accessible to be fired, suggests that they did not further “a

drug trafficking offense.” The evidence presented at the hearing suggests that the

weapons did not have a permanent place at the warehouse. This completely

undercuts the theory that they were there to protect “the king in his castle” or the

illegal drugs or proceeds from illegal activity. Id.

    Additionally, Deputy Perez could not testify as to when the weapons got there

or when the methamphetamine got there. He did not testify that Appellant was seen

driving the Ford F-150 into the warehouse or out of the warehouse on March 12,

2015, when the warrants were executed, or on March 13, 2015, or on any other day

on or about the date of the offense. The State pled that Appellant committed the

drug offense on or about March 13, 2015, the day that he was arrested, 10-15

minutes away from where the drugs and guns were found. (I C.R. 2). However, he

was arrested without guns or drugs. (I R.R. 37).

   At the hearing, the State relied heavily and exclusively on Coleman v. State.

145 S.W.3d 649 (2004) (Tex. Crim. App. 2004). Coleman is distinguishable from

Appellant’s case. In Coleman, the drugs were found all over the house and two

guns were found in a room inside a safe containing two large PCP bottles and large

amounts of cash. Id. at 655. This Court in Coleman emphasized the proximity of



                                           23
the weapons to the drugs. Id. (citing Gale v. State, 998 S.W.2d 221 (Tex. Crim.

App. 1999)). Unlike Coleman, where the drugs were found all over the house,

there was no testimony from Deputy Perez as to the exact location of the drugs

because he did not find them. (I R.R. 35-36). All he said was that the

methamphetamine was stored “in a box” which is different from “all over the

house” as in Coleman, supra. (I R.R. 35). Unlike Coleman, where the guns were

found in a safe where cash and drugs were found, the weapons in this case were

stored in a closed “Pelican” box, in a working vehicle, separate and apart from

where the meth was found. Thus, the State’s reliance in Coleman is misplaced.

   All Deputy Perez testified to was that the weapons were “found.” He did not

provide testimony as to whether the weapons were loaded, where they were found

in relation to the drugs, or whether the Pelican boxes were locked. The evidence

provided by Deputy Perez was wholly inadequate and insufficient to “substantially

show” that Appellant “used” a deadly weapon. Because of the foregoing reasons

Appellant suggests that the State has failed to provide a “substantial showing” that

Appellant “used” a deadly weapon during the commission of the felony offense of

possession with intent to deliver methamphetamine.

      3. Other evidence to support that Appellant did not use a deadly
      weapon during the commission of the felony.




                                         24
   Furthermore, there was no testimony by Deputy Perez that Appellant “used” a

deadly weapon during the commission of the felony offense of possession of with

intent to deliver methamphetamine nor that it was his belief and or opinion.

Additionally, there was no evidence at the hearing that Appellant admitted to the

methamphetamine being his or that he admitted that the weapons were his.

Therefore, Appellant contends that the State failed to meet their burden with regard

to Cause No. 1461069, specifically, that Appellant “used” a deadly weapon during

the commission of a felony pursuant to Article I, § 11a of the Texas Constitution.

   b. Cause No. 1461070 – Possession of a Prohibited Weapon Charge

   The plain language of Article I, § 11a(3) states that “any person . . . accused of

a felony less than capital in this State involving the use of deadly weapon after

being convicted of a prior felony . . .may be denied bail pending trial.” Tex. Const.

art. 11a(3) (emphasis added). The same argument made for Cause No. 1461069,

above, applies to the possession of a prohibited weapon charge. Appellant would

first suggest that the State did not prove by a substantial showing that Appellant

possessed the prohibited weapon. There was no testimony that Appellant was seen

driving the vehicle on the date of the offense or on the days leading up to the

offense. Second, the State did not prove by a substantial showing that Appellant

“used” the prohibited weapon in any capacity to facilitate the commission of a

felony. See section a, supra.



                                         25
   Furthermore, Appellant suggests that the State’s pleadings under his case are

indicative that bail cannot be denied. In the indictment, the State pled that

Appellant committed the offense of “possession” of a prohibited weapon. (II C.R.

2). No evidence at the hearing suggested that Appellant “used” the prohibited

weapon. This Court’s ruling in Ex Parte Petty is instructive.

   In Ex Parte Petty, the defendant pled guilty to unlawful possession of a firearm.

Ex Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992). The trial court entered an

affirmative finding that Appellant used or exhibited a deadly weapon. Id. at 145.

This Court in Petty held that “in order to “use” a deadly weapon for affirmative

finding purposes, the weapon must be utilized to achieve an intended result,

namely, the commission of a felony offense separate and distinct from “mere”

possession. Id. Therefore, this Court found that the trial court erred in entering an

affirmative finding of a deadly weapon since there was no “associated felony”

facilitated by Appellant’s possession. Id. at 145-146.

   Like in Petty, there was no allegation in the pleadings or sufficient evidence on

the record that Appellant “used” the short barrel firearm. As a result, Appellant

contends that the State has failed to meet their burden and as a result a reasonable

bail should be set on this case as well.




                                           26
                                 CONCLUSION

      Appellant respectfully requests that this Court set bond on all three cases

pursuant to Appellant’s Motion to Set bond filed prior to the hearing. (II C.R. 6-10)

and a reasonable bond on Cause No. 1383239. (I C.R. 7-11)




                                         27
                              PRAYER FOR RELIEF


      Wherefore, Appellant prays that this Honorable Court reverse the judgment

of the trial court, set a reasonable bond on all three cases, and remand this cause to

the trial court for further proceedings.

                                  Respectfully submitted,


                                  /s/ Javier O. Martinez
                                  Javier O. Martinez
                                  Bires Schaffer and DeBorde
                                  SBOT 024082538
                                  712 Main Street, Suite 2400
                                  Houston, Texas 77002
                                  (713) 228-8500 – Telephone
                                  (713) 228-0034 – Facsimile
                                  Email: Javier@BSDLawFirm.com

                                  Attorney for Appellant,
                                  Craig Ross Shephard




                                           28
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned

counsel of record certifies that the petition contains 5,812 words.



                                 /s/ Javier O. Martinez
                                 Javier O. Martinez




                                          29
                        CERTIFICATE OF SERVICE

      I hereby certify that a true copy of Appellant’s brief has been electronically

served on May 6, 2015 to the following persons:

Devon Anderson
District Attorney Harris County
Appellate Section
1201 Franklin, Suite 600
Houston, Texas 77002

Alan Curry, Assistant District Attorney
Appellate Section
1201 Franklin, Suite 600
Houston, Texas 77002




                                      Respectfully submitted,


                                      /s/ Javier O. Martinez
                                      Javier O. Martinez




                                          30
