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                                     DISSENTING OPINION

                                          No. 04-07-00303-CR

                                       Melissa Ann FULCHER,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 216th Judicial District Court, Bandera County, Texas
                                     Trial Court No. BACR-05-004
                         Honorable David A. Berchelmann Jr., Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting opinion by: Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: August 6, 2008

           To convict Melissa Ann Fulcher of possession of methamphetamine, the State was required

to prove she intentionally and knowingly possessed methamphetamine. During her trial, Fulcher

did not contest that a trace amount of methamphetamine was found on two items seized from her

truck: a mirror found in the glove box and a broken light bulb found in a blue canvas bag in the

back of her vehicle. However, Fulcher disputed that she knowingly possessed the two items.

Essentially, her position at trial was she did not intentionally or knowingly possess any item that

contained a controlled substance. The trial court’s failure to instruct the jury that the State was
Dissenting Opinion                                                                         04-07-00303-CR

required to prove beyond a reasonable doubt a knowing or intentional possession of

methamphetamine thus “vitally affected” Fulcher’s only defensive theory. See Sanchez v. State, 209

S.W.3d 117, 121 (Tex. Crim. App. 2006). Because the majority holds Fulcher did not suffer

egregious harm as a result of the trial court’s failure to include a mens rea in the application

paragraph of the court’s charge, I respectfully dissent.

        As the majority opinion correctly states, unpreserved jury charge error is reversible only if

the resulting harm is “egregious”; that is, if the error in the charge “affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.” Stuhler v. State,

218 S.W.3d 706, 719 (Tex. Crim. App. 2007). In determining whether there was egregious harm,

the reviewing court must consider the entire jury charge, the state of the evidence, including the

contested issues and the weight of probative evidence, counsels’ arguments to the jury, and any other

relevant information revealed by the record of the trial as a whole. Id.; Sanchez, 209 S.W.3d at 121.

I review each in turn.

                                           The Jury Charge

        The jury charge stated in relevant part:

                The defendant, Melissa Ann Fulcher, stands charged by indictment with the
        offense of possession of a controlled substance, to wit, methamphetamine, in the
        amount of less than one gram, alleged to have been committed on or about the 16th
        day of September, 2004, in Bandera County, Texas. The defendant has pleaded “not
        guilty.”

                                               I.
               Our law provides that a person commits an offense if, she intentionally or
        knowingly possesses a controlled substance. Under our law, methamphetamine is
        a controlled substance.

                                                    II.


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Dissenting Opinion                                                                      04-07-00303-CR

                Possession means actual care, custody, control, or management. Possession
        is a voluntary act if the possessor knowingly obtains or receives the thing possessed
        or is aware of her control of the thing for a sufficient time to permit her to terminate
        her control.

        [definition of “adulterant or dilutant” omitted]

                                               III.
              A person acts intentionally, or with intent, with respect to the nature of her
        conduct when it is her conscious objective or desire to engage in the conduct.

               A person acts knowingly, or with knowledge, with respect to the nature of her
        conduct when she is aware of the nature of her conduct or to the circumstances
        surrounding her conduct when she is aware of the nature of her conduct or that the
        circumstances exist.

                                              IV.
               Now if you find from the evidence beyond a reasonable doubt that on or
        about the 16th day of September, 2004, in Bandera County, Texas, the defendant,
        Melissa Ann Fulcher, did then and there possess a controlled substance, to wit:
        methamphetamine in an amount of less than one (1) gram, then you will find the
        defendant guilty as charged.

        The majority concludes the charge “sufficiently informed the jury of the mental state

required for commission of the charged offense.” Fulcher v. State, No. 04-07-00303-CR, slip op.

at 8 (Tex. App.–San Antonio Aug. 6, 2008). Although this may be a true statement, the charge did

not sufficiently inform the jury of the mental state required for conviction of the charged offense.

The charge provided the jury the definitions for intentionally and knowingly, but the jury was given

no guidance on how to apply those definitions to its determination of Fulcher’s guilt. The

introductory paragraph of the charge told the jury Fulcher was charged with possession of

methamphetamine without any reference to a mens rea. Paragraph I instructed the jury that the law

provides an offense is committed if possession is intentional or knowing. Yet Paragraph III, the




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Dissenting Opinion                                                                     04-07-00303-CR

application paragraph, commands the jury to find guilt for possession alone, without any

requirement of a mens rea.

                         The State of the Evidence and Contested Issues

        The State was required to prove Fulcher intentionally or knowingly possessed an item and

knew the item was methamphetamine. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App.

1995). The State’s chemist testified two items submitted to him contained trace amounts of

methamphetamine. He testified a trace amount, not visible to the naked eye, was found on a broken

light bulb. To conduct the test, he had to rinse the glass with water and test the resulting solution:

        A:      [by chemist] On State’s Exhibit 7, I only rinsed two pieces of the glass in
                State’s Exhibit No. 7, the broken glass, so I took out two of the pieces of
                glass and rinsed them for my analysis.

        Q:      [by prosecutor] Okay, and I’m assuming if you couldn’t weigh it, once you
                tested it, it no longer exists?

        A:      The substances that I rinsed were consumed in the analysis, the portion that
                I analyzed.

The prosecutor continued with questioning about the mirror:

        Q:      Okay, and that’s the same thing for the mirror?

        A:      Yes, there really wasn’t anything for me to scrape off, to weigh, and so I
                didn’t rinse it for my analysis, and it was consumed in my analysis.

        Q:      Do you remember what type of substance was in the mirror? Was it white,
                black, blue, or –

        A:      No, the only thing that I do [sic] was it was a residue. I don’t have the color
                written down, what color it was.

The chemist’s testimony about the appearance of the mirror and his testing of it was less than clear.

However, the officer who seized the mirror testified a powdery residue was present on its surface.


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Dissenting Opinion                                                                   04-07-00303-CR

The only additional item the State submitted for testing, the contents of a Sunkist bottle, tested

negative for methamphetamine.

        The State’s evidence thus showed only a trace of methamphetamine on two items. The trace

was not visible at all on the broken light bulb and the mirror contained a residue of unspecified

appearance and too small to scrape off. “‘[W]hen the quantity of a substance possessed is so small

that it cannot be measured, there must be evidence other than mere possession to prove that the

defendant knew the substance in his possession was a controlled substance.’” King v. State,

895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (quoting Shults v. State, 575 S.W.2d 29, 30 (Tex.

Crim. App. 1979)).

        To prove Fulcher knew the substance on the mirror and light bulb was methamphetamine,

the State presented evidence that she exhibited many signs associated with an abuser of

methamphetamine and that she was under the influence of the drug when she was arrested. Deputy

Price testified Fulcher had “strong signs” of a methamphetamine user, such as sores and blisters on

her tongue and mouth and open sores on her arms and body. Deputy Johnson testified Fulcher also

had burn marks on her lips, indicating she had smoked “methamphetamine or crack cocaine.” He

also testified Fulcher’s purse contained receipts for the purchase of items that are used to

manufacture methamphetamine. Deputies Price and Harrell testified Fulcher engaged in violent,

emotional, and irrational behavior when she was arrested, including banging her head against the

side and rear windows of the patrol car. Deputy Johnson testified Fulcher’s eyes were dilated, which

“indicates a stimulant is present inside the body, methamphetamine, cocaine or common stimulants.”




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Dissenting Opinion                                                                                  04-07-00303-CR

         The State also sought to prove Fulcher knowingly possessed methamphetamine with

evidence that the items containing a trace of methamphetamine were associated with use of the drug.

The chemist explained to the jury how drug abusers convert an ordinary incandescent light bulb into

a pipe for smoking methamphetamine. Deputy Harrell testified a mirror is commonly used to

facilitate the smoking of methamphetamine by using it as a base on which to “chop” the

methamphetamine crystals.

         Finally, the State attempted to show knowledge of the presence of methamphetamine through

testimony that a drug-sniffing dog used during the search alerted to four additional locations in the

vehicle. However, the dog handler testified the dog was trained to alert to many different controlled

substances, not just methamphetamine. In fact, marijuana was found in one of the locations to which

the dog alerted.

         The evidence of Fulcher’s past and current methamphetamine use could support an inference

that she had knowledge the broken light bulb and the mirror contained at least a trace of

methamphetamine. However, the inference holds only if the State demonstrated Fulcher knowingly

possessed those items. “[P]ossession of the container in which the [controlled] substance is found

is not, itself, sufficient to prove a knowing possession.” Joseph, 897 S.W.2d at 377 (Baird, J.,

concurring). Deputy Harrell testified the light bulb was found in a blue canvas bag in the back of

Fulcher’s truck and that the bag also contained women’s undergarments. The State did not present

any other evidence connecting the bag or its contents to Fulcher. Fulcher testified she did not own

the blue canvas bag, the clothing found in the bag was not hers, and she “did not recall” the mirror.1


         1
         The majority opinion notes the mirror was found in an “open” glove box. However, the record does not disclose
whether the mirror was visible in the glove box.

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Dissenting Opinion                                                                                       04-07-00303-CR

Fulcher and her husband both testified that earlier on the day of Fulcher’s arrest, someone named

“Nancy” had borrowed the truck to move some of Nancy’s personal belongings.

         The State clearly established two items found in Fulcher’s vehicle contained trace amounts

of methamphetamine. However, the evidence she knowingly possessed those items and she knew

they contained methamphetamine was far from overwhelming. Fulcher’s evidence joined issue on

whether she intentionally or knowingly possessed methamphetamine, making the omission of the

mens rea element from the charge more likely to result in harm.

                         The Jury Arguments and Trial Record Trial as a Whole

         The possibility of egregious harm resulting from the failure to properly instruct the jury

would have been lessened had the attorneys argued to the jury that the mens rea was an element

required for conviction.2 But that did not occur.

         In voir dire, the prosecutor told the jury one time that it must prove Fulcher “unlawfully,

intentionally or knowingly” possessed methamphetamine. The jury heard reference to the required

mental state when the indictment was read. The prosecutor mentioned the mens rea element once

in his opening statement to the jury. And, after the evidence closed, the judge read the charge to the

jury. These were the only times the jury heard any statement about the mens rea.



         2
           See and compare Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008) (holding defendant was not
egregiously harmed by failure to instruct jury that it must acquit if it had reasonable doubt as to whether victim consented
to assault while noting that defense counsel had informed the jury of the correct burden in his closing argument), and
Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006) (holding error in failing to instruct jury that State had burden
to prove deadly weapon issue beyond a reasonable doubt did not result in egregious harm where both State and defense
counsel informed jury of correct burden and standard of proof during jury arguments), with Green v. State, 233 S.W.3d
72 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d)(holding defendant was egregiously harmed by application
paragraph of charge that allowed jury to convict if codefendant committed offense without finding defendant guilty as
a party, notwithstanding correct statement of law of parties in abstract portion of charge, where State argued to jury that
defendant was guilty of murder based on codefendant’s firing of fired fatal bullet without arguing culpability based on
law of parties).

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Dissenting Opinion                                                                       04-07-00303-CR

        The State did not argue to the jury that it had proved knowing or intentional possession of

methamphetamine. Instead, the prosecutor essentially told the jury that an “unknowing” possession

was sufficient to convict. In his opening argument, he referred the jury to the “voluntary possession”

definition of the charge, telling the jury that mere possession, presuming knowledge from length of

time in the vehicle, was sufficient for conviction:

        I don’t care if somebody else used the truck earlier in the day. Who cares about that?
        They drove, her and her husband, drove back in that truck all the way from there
        back to their house to take care of their kids. That truck was in their possession and
        under their control all during that time period, and then at sometime that evening the
        Defendant, by her own testimony, all by herself, drives that truck all the way back
        up here to Bandera County from San Antonio, a good hour drive, stopped and got
        some gas, got out there to English Crossing, was out there for some period of time.
        That’s plenty of time to know what’s going on and what’s in your truck . . . .

                The charge there under page 2 says possession is a voluntary act if the
        possessor knowingly obtains or receives the thing possessed or is aware of her
        control of the thing for a sufficient time to permit her to terminate her control. You
        possess stuff that’s in your vehicle and you know about it, bottom line.

The prosecutor continued to emphasize mere possession and the voluntary possession definition in

his closing, with no mention of the mens rea requirement:

                The law is, as the Judge has told you, possession means aware of her control
        of the thing for a sufficient time to permit her to terminate her control. It is actual
        care, custody, control or management. I don’t know, but – but in the vehicle I own,
        if there’s anything in there, I control it because I can pitch it out. If I see something
        in my vehicle and I think, “Hey, that’s not mine. What is it?”, what do we do? We
        check it out – right – especially if we loaned our car out to somebody, which, by the
        way, you only heard that from Ms. Fulcher and her spouse . . . .

                ....

               A lot of talk here about possession, a lot of talk about it, and I think the thing
        to focus on is this: If something is in your car, you have control over it. Why?
        Because it’s in your car. Just like the CDs, the clothing, the floor mat, whatever is



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Dissenting Opinion                                                                     04-07-00303-CR

        in your car, you can do with it what you want; right? It’s in your car. That is the
        definition of possession.

                ....

                . . . The only thing they are really arguing over is whether or not the stuff
        found in the truck was in her possession. Page 1 of the charge, paragraph 2
        [voluntary possession] , takes care of that right away. She had the ability to control,
        manage, do anything she wanted with anything in that truck for at least several hours
        that night, even giving her the benefit of the doubt, even after it got back from
        whoever she borrowed it to . . . .

Fulcher’s trial counsel never mentioned the mens rea requirement in his closing argument. He made

only an indirect reference when discussing the amount of methamphetamine discovered by the

deputies:

                Now, if there was 10 pounds of marijuana, 10 pounds of cocaine in the back
        seat, that’s a deciding difference, but when you have a controlled substance that is
        under a gram, that according to the chemist, you couldn’t even weigh it, couldn’t
        even see it, you actually have care, custody, control and management over that,
        quote, “trace”?

Based on the trial court’s instruction on voluntary possession and the prosecutor’s arguments to the

jury, the jury could easily have concluded it could presume Fulcher had knowledge of the controlled

substances from the passage of time.

                                             Conclusion

        A fair reading of the record reflects Fulcher’s defense was that she did not own, was not

aware of, and therefore did not possess the drugs with the requisite mens rea. The jury charge did

not require the jury to find the mens rea be proven beyond a reasonable doubt before it could convict

Fulcher, and the prosecutor’s arguments suggested the jury could convict without finding Fulcher

intentionally or knowingly possessed an item she knew to be methamphetamine. Considering the



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Dissenting Opinion                                                                     04-07-00303-CR

charge as a whole, the state of the evidence, and the arguments of counsel, the failure to include the

requirement of an intentional or knowing possession in the application paragraph of the jury charge

vitally affected Fulcher’s only defense. Because I believe this error in the charge egregiously harmed

Fulcher, I would reverse the trial court’s judgment and remand the cause for a new trial.



                                               Steven C. Hilbig, Justice



Publish




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