                                                                                ACCEPTED
                                                                           05-14-01399-CR
                                                                 FIFTH COURT OF APPEALS
                                                                           DALLAS, TEXAS
                                                                     3/30/2015 12:25:44 PM
                                                                                LISA MATZ
                                                                                    CLERK

                 IN THE COURT OF APPEALS
                  FOR THE FIFTH DISTRICT
                      DALLAS, TEXAS                      RECEIVED IN
                                                   5th COURT OF APPEALS
                                                        DALLAS, TEXAS
                                                   3/30/2015 12:25:44 PM
CHRISTOPHER LEE COLE         §                            LISA MATZ
    Appellant                §                              Clerk
                             §
VS.                          §     APPEAL NUMBERS
                             §     05-14-01398-CR
                             §     05-14-01399-CR
STATE OF TEXAS               §   (ORAL ARGUMENT REQUESTED)
    Appellee                 §


        On Appeal from Criminal District Court Number Six
                     of Dallas County, Texas
                         No. F-13-53515
                         No. F-13-53516


                     Appellant’s Brief




                             RONALD L. GORANSON
                             2828 Routh Street
                             Suite 675
                             Dallas, Texas 75201
                             (214) 651-1122
                             (214) 871-0620 (fax)
                             State Bar No. 08195000

                             ATTORNEY FOR APPELLANT
                             COLE
                              Identity of Parties and Counsel

Appellant                           Christopher Lee Cole

       Appellant’s Attorney         Ronald L. Goranson
                                    2828 Routh Street, Suite 675
                                    Dallas, Texas 75201
                                    (214) 651.1122
                                    (214) 871-0620 (fax)
                                    SBOT No. 08195000

       Appellant’s Trial Attorney
                                    Mr. Howard Blackmon
                                    SBOT NO. 02395800
                                    4144 North Central Expressway, Suite 250
                                    Dallas, Texas 75204
                                    Phone: (214) 821-1919


State of Texas                      Susan Hawk, District Attorney, Dallas County, Texas

       Appellate Attorney           Ms. Lori Ordiway
                                    SBOT No. 12327300
                                    Assistant District Attorney
                                    133 N. RIVERFRONT BLVD, 10TH Floor
                                    Dallas, Texas 75207
                                    Tel. (214) 653-3644

       Trial Attorneys              By Mr. Blake Reyna
                                    SBOT NO. 24051246
                                    Assistant District Attorney
                                    Frank Crowley Courts Building
                                    133 North Riverfront
                                    Dallas, Texas 75207
                                    Phone: (214) 653-3600

                                    Mr. Dimitri Anagnostis
                                    SBOT NO. 24066767
                                    Assistant District Attorney
                                    Frank Crowley Courts Building
                                    133 North Riverfront
                                    Dallas, Texas 75207
                                    Phone: (214) 653 - 3600



Appellant Cole’s Briefs 05-14-01398/399-CR                                     Page ii
                           TABLE OF CONTENTS


STATEMENT OF THE CASE ……………………………………………1

ISSUES PRESENTED …………………………………………………….3

STATEMENT OF THE FACTS ……………………………..……………3

SUMMARY OF THE ARGUMENT ...……………………………………6

POINT OF ERROR 1

      THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE
      JURY AS REQUIRED BY ART. 38.23 OF THE RULES OF
      CRIMINAL PROCEDURE THAT IF THE JURY BELIEVED OR
      HAD A REASONABLE DOUBT THAT THE EVIDENCE SEIZED
      WAS OBTAINED IN VIOLATION OF THE CONSTITUTION OR
      LAWS OF THE STATE OF TEXAS OR UNITED STATES, THE
      JURY SHOULD DISREGARD THAT EVIDENCE.………….…. 7

POINT OF ERROR 2

      THE EVIDENCE WAS INSUFFICIENT TO PROVE THE
      ENHANCING PARAGRAPH IN EACH INDICTMENT………..17

CONCLUSION …………………………………………………..………20

CERTIFICATE OF SERVICE …………………………………..….……21

CERTIFICATE OF COMPLIANCE …………………………………….21




Appellant Cole’s Briefs 05-14-01398/399-CR        Page iii
                            INDEX OF AUTHORITIES
CASES:
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)                                    8

Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.1985)                                7, 8, 16

Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986)                                   8, 16

Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)                                      9

Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984)                                     9

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443

  U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))                                        17

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007)                                     17

Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007)                                     17

Ford v. State, 444 S.W.3d 171 (Tex.App.-San Antonio 2014)                                     15

Garza v. State, 126 S.W. 3d 79, 85 (Tex. Crim. App. 2004)                                     10

Gentile v. State, 848 S.W.2d 359, 360 (Tex.App.-Austin 1993, no writ)                         18

Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012)                                     9

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99

  S.Ct. 2781)                                                                                 17

Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996)                                        8

Kothe v. State, 152 S.W.3d 54, 61 (Tex.Crim.App. 2004)                                        15

Madden v. State, 242 S.W.3d 504, 514 (Tex. Crim. App. 2007)                                    9

Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008)                                    9

Payne v. State, 194 S.W.3d 689, 698 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd)        10

Pineda v. State, 444 S.W.3d 136, 143 (Tex.App.-San Antonio 2014)                              15
Appellant Cole’s Briefs 05-14-01398/399-CR                                       Page iv
Robinson v. State, 377 S.W.3d 712, 719-720 (Tex. Crim. App. 2012)            10, 14

Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008)                         7

Watson v. State, 693 S.W.2d 938, 941 (Tex. Crim. App. 1985)                     10




STATUTES/CONSTITUTIONS:
Art. 38.23 of the Code of Criminal Procedure                         3, 6, 7, 8, 16

Rule 25.2 of the Texas Rules of Appellate Procedure                              2

Art. 44.02 of the Texas Code of Criminal Procedure                               2

Tex. Transp. Code § 547.302                                                     11

Tex. Transp. Code § 547.322                                                     11




Appellant Cole’s Briefs 05-14-01398/399-CR                          Page v
                         IN THE COURT OF APPEALS
                          FOR THE FIFTH DISTRICT
                              DALLAS, TEXAS


CODY TYLER JONES                        §
    Appellant                           §
                                        §
VS.                                     §    APPEAL NUMBERS
                                        §    05-14-01398-CR
                                        §    05-14-01399-CR
STATE OF TEXAS                          §    (Oral Argument Requested)
    Appellee                            §


             On Appeal from Criminal District Court Number Six
                          of Dallas County, Texas
                              No. F-13-53515
                              No. F-13-53516

                             Appellant’s Brief

Statement of the Case:

      Appellant Christopher Lee Cole was charged with two possession of

controlled substance with intent to deliver cases. The cases were tried together.

Any errors will apply to both cases. Appellant requests that the cases be

considered together.

      Appellant was charged by an indictment in F-13-53515 (Appeal #05-14-

01398-CR) with the offense of possession with intent to deliver more than 4 grams

but less than 200 grams of the controlled substance cocaine. (R 13/53515 at p.6)




Appellant Cole’s Briefs 05-14-01398/399-CR                              Page 1
(hereinafter R515, p. #). The indictment also alleged one prior felony conviction

for enhancement of the punishment.

      In F-13-53516 (Appeal #05-14-01399-CR) he was charged with the offense

of possession with intent to deliver more than 1 gram but less than 4 grams of the

controlled substance methamphetamine. This indictment also included an

enhancing paragraph alleging the same prior conviction to enhance the

punishment. (See R 13/53516 at p. 6)(hereinafter R516, p. #).

      The appellant pled not guilty and a jury trial on both guilt/innocence and

punishment was held on September 29, 2014 to October 1, 2014. On October 1,

2014 the jury found Appellant guilty on both charges, found the enhancing

paragraphs to be true and assessed a 15 year sentence in F-13-53515 (R 515, p. 63,

SF. Vol 4, p. 58) and a 7 year sentence in F-13-53516. (R 516, p. 58, SF- Vol 4, p.

58). The sentences were ordered to run concurrently. (SF – Vol 4, p. 61, R515, p.

63, R516, p. 58).

      Written Notice of Appeal was filed on October 13, 2014. (R515, p. 67, R.

516, p. 68). This jurisdiction of this Court is invoked pursuant to Art. 44.02 of the

Texas Code of Criminal Procedure and Rule 25.2 of the Texas Rules of Appellate

Procedure. The cause is properly before this Court of Appeals.




Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 2
Issues Presented:

      1. The trial court erred in failing to instruct the jury as required by

      Art. 38.23 of the Rules of Criminal Procedure that if the jury believed

      or had a reasonable doubt that the evidence seized was obtained in

      violation of the Constitution or laws of the State of Texas or United

      States, the jury should disregard that evidence.

      2. The evidence was insufficient to prove the enhancing paragraph in

      each indictment.

Statement of Facts:

      Evidence for the State on Guilt or Innocence

      Dallas Police Officer David Roach testified that on March 12, 2013 he was

parked in his patrol car with officer Mills on Bexar Street in South Dallas. (SF Vol

3, p. 22). He noticed a vehicle pass that had a defective license plate light. (SF Vol

3, p. 23) The officers conducted a traffic stop. Officer Roach approached the

passenger side of the vehicle and observed a person he later identified as Appellant

light up a cigarette. (SF Vol 3, p. 25). Officer Roach asked Appellant if the

cigarette was a “blunt.” The officer stated that a “blunt” was “a common term for

marijuana cigarette.” (SF Vol 3, p. 26) Appellant answered “Yeah, I was just

about to hand it to you.” (SF Vol 3, p. 26) the officer said “Go ahead” and

Appellant handed the officer the cigarette. The officer testified that the cigarette


Appellant Cole’s Briefs 05-14-01398/399-CR                                Page 3
appeared to contain marijuana. (SF Vol 3, p. 26). The officer then asked the

Appellant to exit the vehicle where he was handcuffed and arrested for possessing

marijuana. (SF Vol 3, p. 26).

      Officer Roach then stated that he asked the Appellant if there was anything

he needed to know about before the officer searched Appellant. Appellant

responded that there was a pill bottle with “some s**t in it.” The officer searched

the Appellant and found a clear pill bottle inside the right front pocket of

Appellant’s jacket. (SF Vol 3, p. 29). Inside the pill bottle were several baggies

that contained a crystal like substance and a white powder. (SF Vol 3, p. 29). He

testified that there were smaller empty bags also found, and that the size of the

bags and number of bags indicated the drugs were intended for resale. (SF Vol 3,

pp. 32-33). Field tests indicated the substances found were cocaine and

methamphetamine. (SF Vol 3, pp. 34-35). On cross-examination the officer

testified that the traffic stop was recorded, the recording was uploaded into the

Dallas Police system, but that it could not be found. (SF Vol 3, pp. 46-47)

On Redirect, he denied that he intentionally dumped the recording. (SF Vol 3, p

60)

      Kelly Conrad testified that she was a chemist for the Southwestern Institute

of Forensic Sciences. (SF Vol 3, p. 60). She identified the baggies that were seized

from the Appellant. State’s Exhibit # 5 contained 7.4 grams of cocaine, including



Appellant Cole’s Briefs 05-14-01398/399-CR                                Page 4
adulterants. (SF Vol 3, pp. 69-70). State’s Exhibit #6 contained 2.24 grams of

methamphetamine. (SF Vol 3, p. 70).

      Officer Tyler Mills testified that he was the driver of the police car with

Officer Roach. (SF Vol 3, p. 76) He stated that they noticed a car with a defective

license plate light and stopped it for a traffic offense. (SF Vol 3, p. 76) He stated

that he approached the driver and Officer Roach approached the passenger side.

(SF Vol 3, p. 76). He stated he heard Officer Roach ask the passenger if that was a

“blunt” in the passenger’s hand and the passenger (identified as Appellant Cole)

answered “Yeah, I was just about to give it to you.” (SF Vol 3, p. 77). After the

Appellant was arrested, he did another search and found a large hefty bag

containing a green leafy substance he identified as marijuana in the Appellant’s

front waist area (SF Vol 4, pp. 78-80). He testified that the number of baggies

found indicated an intent to sell the various drugs. (SF Vol 4, p. 80).

      Irving Police Department Narcotics Detective Stephen Junker testified that

the different types of packaging and the different types of drugs indicated an intent

to sell. (SF Vol 4, pp. 95-96, 97-98, 100, 101, 103-104, 105).

      Evidence for the State on Punishment

      Dallas County Deputy Sheriff Fernando Hernandez stated that he took the

Appellant’s fingerprints. (SF Vol 4, p. 12). He compared the prints to conviction

records for two felonies. State’s Exhibit #9 was for a conviction in F-05-58330 for



Appellant Cole’s Briefs 05-14-01398/399-CR                                Page 5
unlawful delivery of cocaine resulting in a 6-year sentence. (SF Vol 4, p. 17).

This was the conviction alleged in the enhancing paragraph of each indictment. (R

515, p. 6; R516, p. 6). The state also introduced conviction records showing a

concurrent six year sentence for possession with intent to deliver cocaine in F-07-

52879 (State’s Exhibit #10, SF Vol 4, p. 18); a 10 month state jail felony sentence

for delivery of marijuana, (State’s Exhibit 11, SF Vol. 4, pp. 19-20); a concurrent

10 month state jail felony conviction for delivery of marijuana (State’s Exhibit 12,

SF vol4, p 20); a180 day state jail sentence for unauthorized use of a motor vehicle

(State’s Exhibit 13, SF Vol 4, p. 20) and a 45 day county jail sentence for evading

arrest (State’s Exhibit 14, SF Vol 4, p. 21). The officer used the fingerprint records

of all the records of conviction (except Exhibit 10) to compare with the Appellant’s

fingerprints, but he was never asked if they matched.

      Evidence for The Defense on Punishment

      Catherine Cole testified that she was the Appellant’s mother. (SF Vol 4, p.

25). She testified about his background and the difficulties he had while growing

up. (SF Vol 4, pp. 26-30)

Summary of the Arguments:

1.    Appellant contends that the record shows that there was an issue of fact

about the constitutionality of the seizure of evidence that required the jury

instruction required by Art. 38.23 of the Code of Criminal Procedure. The


Appellant Cole’s Briefs 05-14-01398/399-CR                                Page 6
Appellant properly requested such an instruction. Appellant was harmed by the

trial court’s failure to give the instruction.

2.     Although the State called a fingerprint examiner to compare the fingerprints

of the Appellant with those in a judgment of conviction, the State never asked the

witness if the known fingerprints of the Appellant matched those in the records of

the alleged enhancing conviction. Other than the name, there was no other

identifying information submitted to connect the Appellant to the prior conviction.

                          Point of Error Number 1

       The trial court erred in failing to instruct the jury as required by Art.
       38.23 of the Rules of Criminal Procedure that if the jury believed or
       had a reasonable doubt that the evidence seized was obtained in
       violation of the Constitution or laws of the State of Texas or United
       States, the jury should disregard that evidence.

Standard of Review

      In analyzing a jury-charge issue, the court’s first duty is to decide if error

exists. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on

reh'g). If error is found then the court considers whether an objection to the charge

was made. Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008) (“The

failure to preserve jury-charge error is not a bar to appellate review, but rather it

establishes the degree of harm necessary for reversal.”). The degree of harm

necessary for reversal depends upon whether the error was preserved. Hutch v.



Appellant Cole’s Briefs 05-14-01398/399-CR                                  Page 7
State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Error properly preserved by a

timely objection to the charge will require reversal “as long as the error is not

harmless.” Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994);

Almanza, 686 S.W.2d at 171. The Court of Criminal Appeals has interpreted this

to mean that any harm, regardless of degree, is sufficient to require reversal. Arline

v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986).

Argument

     Article 38.23 provides that evidence obtained in violation of the Constitution

or laws of the United States or Texas may not be admitted in a criminal case.

TEX.CODE CRIM. PROC. art. 38.23(a) (“No evidence obtained by an officer or

other person in violation of any provisions of the Constitution or laws of the State

of Texas, or of the Constitution or laws of the United States of America, shall be

admitted in evidence against the accused on the trial of any criminal case.”). The

statute also provides that a jury instruction should be submitted if a fact issue is

raised about whether such a violation has occurred. Id. (“In any case where the

legal evidence raises an issue hereunder, the jury shall be instructed that if it

believes, or has a reasonable doubt, that the evidence was obtained in violation of

the provisions of this Article, then and in such event, the jury shall disregard any

such evidence so obtained.”). The jury instruction requires the jury to disregard

evidence that it finds was obtained in violation of the United States or Texas


Appellant Cole’s Briefs 05-14-01398/399-CR                                 Page 8
Constitution or laws. Id. To be entitled to an Article 38.23 jury instruction, three

predicates must be met: (1) the evidence heard by the jury must raise an issue of

fact, (2) the evidence on that fact must be affirmatively contested, and (3) the

contested factual issue must be material to the lawfulness of the challenged

conduct. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008).

      The Texas Court of Criminal Appeals has held that, to get an instruction on

illegally obtained evidence, there must be a fact issue that the defense has

affirmatively contested; in such a circumstance, cross-examination is insufficient

to qualify as an affirmative contest. Madden v. State, 242 S.W.3d 504, 514 (Tex.

Crim. App. 2007); see Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App.

2012). Although the court has not explicitly held that the defense must introduce

the evidence to affirmatively contest that issue, logically, most circumstances will

require the defense to introduce the evidence. However, in every other type of jury

instruction--defenses, affirmative defenses, and party liability--there is no

requirement that the instruction's proponent be the party that introduces the

evidence. If the record contains sufficient evidence raising a certain issue, the

instruction on that issue should be given, regardless of which party tendered the

evidence. See, e.g, Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985);

Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984) (“it makes no

difference whether such evidence or testimony was produced by the prosecution or



Appellant Cole’s Briefs 05-14-01398/399-CR                                Page 9
the accused”); see also Watson v. State, 693 S.W.2d 938, 941 (Tex. Crim. App.

1985); Payne v. State, 194 S.W.3d 689, 698 (Tex. App.--Houston [14th Dist.]

2006, pet. ref'd). When a disputed, material issue of fact is successfully raised, the

terms of the statute are mandatory, and the jury must be instructed accordingly.

Madden, supra, at 510. Evidence to justify an Article 38.23(a) instruction can

derive from any source, no matter whether strong, weak, contradicted,

unimpeached, or unbelievable. Robinson v. State, 377 S.W.3d 712, 719-720 (Tex.

Crim. App. 2012); Garza v. State, 126 S.W. 3d 79, 85 (Tex. Crim. App. 2004).

The evidence must raise a “factual dispute about how the evidence was obtained.”

[Robinson, supra at 719; Garza, supra at 85.

Facts Showing Error

      Appellant filed a pretrial Motion to Suppress. (R515, p. 35, R 516, p. 43).

The motion alleged that the evidence seized was “obtained as a result of an

unlawful stop, detention, search and seizure …” Id. Prior to the selection of the

jury there was a hearing on Appellant’s Motion to Suppress. (SF Vol 2, pp 4-20).

Essentially Officer Roach stated that the vehicle in which Appellant was riding

was stopped because there was a defective tail light on the rear license plate. (SF

Vol 2, p. 6): “We observed the vehicle to not have an operating rear license-plate




Appellant Cole’s Briefs 05-14-01398/399-CR                              Page 10
                                                                        1
light during nighttime hours when the headlights were on.”).                Appellant’s trial

counsel questioned the officer about a recording made of the stop that was no

longer available:

       Q. Is there a camera equipment or dash cam in the vehicle?

       A. Yes, there was.

       Q. When does that start filming; when the emergency lights come on?

       A. That's correct, yes.

       Q. Your vehicle would be following the vehicle in which Mr. Cole was
       riding in, and how close contact did you come? You know, what was the
       distance between the cars?

       A. Initially, when we got behind it and stopped the vehicle -- we were
       parked, it was moving, so we had to catch up initially. When the traffic stop
       was occurring, maybe 10, 15 feet behind the rear bumper.

       Q. It would have been captured on dash cam whether or not the light was
       burned out?

       A. Yes, it was captured.

       Q. We don't have dash-cam video?

1
  Tex. Transp. Code § 547.302: “(a) A vehicle shall display each lighted lamp and illuminating
device required by this chapter to be on the vehicle:
(1)     at nighttime; and
(2)     when light is insufficient or atmospheric conditions are unfavorable so that a person or
vehicle on the highway is not clearly discernible at a distance of 1,000 feet ahead.”

Tex. Transp. Code § 547.322 : “(f) A taillamp or a separate lamp shall be constructed and
mounted to emit a white light that:
(1)    illuminates the rear license plate; and
(2)    makes the plate clearly legible at a distance of 50 feet from the rear.
(g)    A taillamp, including a separate lamp used to illuminate a rear license plate, must emit a
light when a headlamp or auxiliary driving lamp is lighted.”


Appellant Cole’s Briefs 05-14-01398/399-CR                                         Page 11
       A. I have seen the video. I am told the video is no longer in our system.
       I’m not sure where it’s at.

       Q. So for trial there is no dash cam?

       A. That's correct.

       Q. For this hearing, there is no dash cam that could provide critical evidence
       whether or not the light was off?
       A. Yes. (SF Vol 2, pp. 14-15)

       During the trial before the jury, the testimony was essentially identical to the

testimony at the pre-trial hearing on the motion to suppress. Officer Roach stated

that the vehicle was stopped because of a defective license plate light. (SF Vol 3,

p. 23). He was cross-examined about the failure to preserve the recording of the

traffic stop:

       Q. When the -- I'll call them "emergency lights."

       A. Okay.

       Q. -- are activated, that activates the dash cam?

       A. Yes, it does.

       Q. So we should have a video of the rear of the car that Mr. Cole was riding
       in?

       A. Yes.

       Q. But we don't?

       A. Once the emergency lights were activated, it records the traffic stop just
       like he said. Once that's done and the arrest is made and all that stuff is
       done, we take the vehicle down back to the station and download it and fill
       out a piece of paper to save that video evidence for trial.

Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 12
             Me and Mills both filled out the paperwork and submitted it through
      the proper channels to get it saved. Why there is no video here right now, I
      have no idea. I know that following the arrest we checked to make sure it
      was downloaded. It was downloaded. The file was there. But in the course
      of time between that day and today, something has happened to it. I couldn't
      tell you what, but I know I did attempt to bring the video to court.

      Q. So Mr. Cole asked for a jury trial. You are saying that the dash-cam video
      was downloaded. All of a sudden, unbeknownst to you, it mysteriously
      disappears, which would corroborate whether or not the rear light was out?

      A. Correct. The way it works, once it's downloaded -- every video Dallas
      Police Department captures on dash cam is downloaded automatically. As
      soon as you pull under the sally-port area at the station, it downloads it
      wirelessly.

             Once it's downloaded, you have to check and put in a piece of
      paperwork to show which video you would like saved with evidence. That
      keeps the City of Dallas from having hundreds and hundreds and thousands
      of videos of someone blocking off a highway during an accident where there
      is nothing there. No evidentiary value.

            What it does is that system automatically deletes any video that isn't
      marked to be saved for evidence for a certain amount of time. I think it's 90
      days. After 90 days, it's deleted.

              Mills and I completed the paperwork to have it saved. We checked to
      see it was downloaded. The video was there. I don't know this -- what's
      happened since then, if it's been automatically deleted by a system error, if
      the person I gave the paperwork to save the video didn't click the right box
      or if the paperwork got lost. I don't know what happened, but I took the steps
      to bring the video to you.

      Q. So you don't know what happened?

      A. I have no idea. (SF Vol 3, pp. 47-49)




Appellant Cole’s Briefs 05-14-01398/399-CR                             Page 13
      Officer Mills also testified on direct that the vehicle was stopped for the

traffic violation of a defective license plate light. (SF Vol 3, p. 76). He was cross-

examined about the dash cam and the missing recording. (SF Vol. 3, pp. 81-82).

      Appellant’s trial counsel made a timely and proper request for the 38.23 jury

instruction. (SF Vol 3, p. 112). During his argument to the jury on guilt or

innocence Appellant’s trial counsel tried to argue the significance of the missing

recording:

      Okay. Now, you heard about this burned-out light on the car. Okay. Of
      course, the dash cam, I mean, how much time they spend on that, trying to
      excuse that away. There should be a video showing the light was burned out,
      showing they had a legitimate reason. You know. What are we really talking
      about here? You know. They're talking about this traffic infraction. I went
      over these other traffic infractions. The 47 in a 45, pulling over the solid
      white line. This nonsense, oh, a burned-out license-plate light. You know,
      people get a pass on that every day, everywhere, except if you are driving
      down Bexar Street in South Dallas. (SF Vol 3, p. 119)

      Evidence to justify an Article 38.23(a) instruction can derive from any

source, no matter whether strong, weak, contradicted, unimpeached, or

unbelievable. Robinson v. State, supra, at 719-720. Here the evidence was raised

by the cross-examination of the two officers. If there was no defective license-

plate light, there was no legal reason to stop the car. Both officers stated that the

only reason the vehicle was stopped was because of the defective license plate

light. (SF Vol 3, pp. 50, 81) Appellant Cole was a passenger in the car. He had




Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 14
standing to protest the alleged traffic stop. 2 The officers clearly stated that they

recorded the top and were close enough for the video to show if the license plate

light was defective. Officer Roach went to great lengths to explain the absence of

the recording. It clearly was a fact question within the jury’s purview to determine

if the stop was “legal.”

       The San Antonio Court of Appeals affirmed a murder conviction in Ford v.

State, 444 S.W.3d 171 (Tex.App.-San Antonio 2014). The opinion stated:

      At trial, Deborah Edwards testified that a power cord used to charge a
cordless electric drill was also missing from her daughter's condominium.
Specifically, Deborah Edwards testified:

             She had one and she bought her father one just like it. And
       when we were putting things up, the cord was missing from hers. It
       was in her office. . . . She bought them at the same time.

            The State then moved to introduce into evidence the identical
       charging cord from the drill Edwards had purchased for her father.
       Ford objected that the cord was not relevant and invited speculation.
       The State responded that the proffered " exhibit is an exact copy of the
       charging cord that is missing from the deceased's cordless charger that
       was in the office where she was found murdered by strangulation."
       The trial court overruled Ford's objection and admitted the cord into
       evidence.

       The opinion continued:



2
  See Kothe v. State, 152 S.W.3d 54, 61 (Tex.Crim.App. 2004) (holding that passengers in a vehicle may
claim a violation of the Fourth Amendment based on an unlawful investigatory stop). See also Pineda v.
State, 444 S.W.3d 136, 143 (Tex.App.-San Antonio 2014)( The investigative stop of Pineda's vehicle
without reasonable suspicion violated Pineda's Fourth Amendment rights as a passenger.)




Appellant Cole’s Briefs 05-14-01398/399-CR                                            Page 15
       The State elicited testimony that the cord was missing from the crime
       scene, presented an identical cord into evidence, and argued that the
       missing cord could have in fact been the murder weapon. Such
       “speculation” is a proper use of circumstantial evidence and a
       question of fact for the jury to resolve.

       In the present case Appellant presented circumstantial evidence that an

important recording was missing. The recording could have shown that there was

no defective license plate light, thus no valid reason to stop the vehicle. With no

reason to stop, all the evidence found on the Appellant would have been seized in

violation of the Texas and United States Constitutions. This was a question that

Article 38.23 requires the jury to answer, and if the jury answers favorably to the

accused, the jury may not consider the evidence for any purpose. The jury should

have been properly charged on the issue. Appellant properly objected to the trial

court’s failure to give a 38.23 jury instruction. Pursuant to Almanza, supra, if

there is a proper request, then any harm, regardless of degree, is sufficient to

require reversal. Arline v. State, supra, at 351. If the jury does not consider the

drugs seized, there would be no conviction. Appellant was harmed by the failure

of the trial court to instruct the jury as required by Art. 38.23, Tex. Code Crim.

Pro.

       Appellant requests that the convictions be reversed and the cause remanded

for a new trial.




Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 16
                           Point of Error Number 2

      The evidence was insufficient to prove the enhancing paragraph in
      each indictment.

Standard of Review

      In evaluating legal sufficiency the Court of Appeals reviews all the evidence

in the light most favorable to the trial court's judgment to determine whether any

rational jury could have found the essential elements of the offense beyond a

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

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)). The appellate court examine legal sufficiency under the direction of the

Brooks opinion, giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781); Clayton

v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

Argument

      To establish that a defendant has been convicted of a prior offense, the State

must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921

(Tex.Crim.App.2007). The Flowers court noted that Texas law does not require



Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 17
“that the fact of a prior conviction be proven in a specific manner,” and “any type

of evidence, documentary or testimonial, may suffice.” Id. In its decision, the

Texas Court of Criminal Appeals likened the process of proving up a prior

conviction to evidentiary pieces to a jigsaw puzzle and left the ultimate decision of

whether these “pieces fit together sufficiently to complete the puzzle” with the trier

of fact under the totality of the evidence. Id. at 923 In Gentile v. State, 848 S.W.2d

359, 360 (Tex.App.-Austin 1993, no writ) a certified copy of driving record,

standing alone, was held insufficient. Appellant contends that the evidence in this

case was the same as that in Gentile - certified records of a judgment.

Facts Showing Error

      Dallas County Deputy Sheriff Fernando Hernandez stated that he took the

Appellant’s fingerprints. (SF Vol 4, p. 12). He compared the prints to conviction

records for two felonies. State’s Exhibit #9 was for a conviction in F-05-58330 for

unlawful delivery of cocaine resulting in a 6-year sentence. (SF Vol 4, p. 17).

This was supposed to be the conviction alleged in the enhancing paragraph of each

indictment. (R 515, p. 6; R516, p. 6). The state also introduced conviction records

showing a concurrent six year sentence for possession with intent to deliver

cocaine in F-07-52879 (State’s Exhibit #10, SF Vol 4, p. 18); a 10 month state jail

felony sentence for delivery of marijuana, (State’s Exhibit 11, SF Vol. 4, pp. 19-

20); a concurrent 10 month state jail felony conviction for delivery of marijuana


Appellant Cole’s Briefs 05-14-01398/399-CR                                Page 18
(State’s Exhibit 12, SF vol4, p 20); a180 day state jail sentence for unauthorized

use of a motor vehicle (State’s Exhibit 13, SF Vol 4, p. 20) and a 45 day county jail

sentence for evading arrest (State’s Exhibit 14, SF Vol 4, p. 21). The officer used

the fingerprint records of all the records of conviction (except Exhibit 10) to

compare with the Appellant’s fingerprints, but he was never asked if they matched.

      Because there were no finger print records for State’s Exhibit #10, the State

sought to prove up that conviction by asking Deputy Sheriff Hernandez if the

handwriting on State’s Exhibit #9 was similar to the defendant’s signature on

documents located in State’s Exhibit 10. He stated the signatures were “similar.”

(SF Vol 4, p. 24).

      The evidence connecting the Appellant to State’s Exhibit # 9 is solely his

name – Christopher Lee Cole. Appellant contends that the lack of testimony that

the fingerprints taken from him (State’s Exhibit #8) matched the fingerprints on

State’s Exhibit # 9 and the lack of any other identifying information other than his

name is insufficient as a matter of law to sustain the finding by the jury that he was

one and the same person previously convicted. There was some testimony trying

to connect Appellant’s signature, but that testimony was limited to connecting

State’s Exhibit 9 to State’s Exhibit 10 (two previous convictions), not to any

exhibit in this present prosecution. There was no testimony about the Appellant’s

photograph, driver’s license, or social security number connecting Appellant to the


Appellant Cole’s Briefs 05-14-01398/399-CR                              Page 19
person named in State’s Exhibit 9. Basically, the state’s case fails because the

prosecutor failed to ask the one critical question – Do the fingerprints in State’s

Exhibit 8 match the fingerprints in State’s Exhibit 9?

      Since the Appellant did not receive the minimum sentence in either case, he

has been harmed and as such the case should be remanded for a new jury trial on

punishment.

Conclusion:

      For the above error Appellant requests that the convictions be reversed and

remanded as to Ground of Error 1 and for a new punishment hearing on Ground of

Error 2.

                                        Respectfully submitted,

                                        /s/Ronald L . Goranson
                                        RONALD L. GORANSON
                                        2828 Routh Street, Suite 675
                                        Dallas, Texas 75201
                                        (214) 651.1122 / (214) 871-0420 (fax)
                                        State Bar No. 08195000
                                        ATTORNEY FOR APPELLANT




Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 20
                       CERTIFICATE O F SERVICE

      I, the undersigned, do hereby certify that a true and correct copy of the

Appellant's Brief was delivered to Ms. Lori Ordiway, Assistant District Attorney,

Appellant Division, Dallas County District Attorney’s Office, 133 N. Riverfront

Blvd, 10th floor, Dallas, Texas, 75207 this March 30, 2015.



                                        /s/Ronald L . Goranson
                                        RONALD L. GORANSON




                   CERTIFICATE O F C O M P L I A N C E

      Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, counsel for

Appellant certifies that there are #### words in this document pursuant to the

inclusions and exclusions required by Rule 9.4(i)(1), Texas Rules of Appellate

Procedure.



                                        /s/Ronald L . Goranson
                                        RONALD L. GORANSON




Appellant Cole’s Briefs 05-14-01398/399-CR                               Page 21
