                                                                             ACCEPTED
                                                                        03-14-00473-CR
                                                                               4146323
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   2/13/2015 1:51:41 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
                  No. 03-14-00473-CR
                        IN THE
                 COURT OF APPEALS                  FILED IN
                                            3rd COURT OF APPEALS
     OF THE THIRD SUPREME JUDICIAL DISTRICT     AUSTIN, TEXAS
     ____________________________________________
                                            2/13/2015 1:51:41 PM
                                                   JEFFREY D. KYLE
              SHAWN MICHAEL WALKER,                     Clerk
                     Appellant,

                           v.

                    STATE OF TEXAS
      ____________________________________________

                 Appeal in Cause No. 72029
                in the 264th District Court of
                     Bell County, Texas
     _____________________________________________

REPLY BRIEF FOR APPELLANT SHAWN MICHAEL WALKER
     _____________________________________________




                                JOHN A. KUCHERA
                                210 N. 6th St.
                                Waco, Texas 76701
                                (254) 754-3075
                                (254) 756-2193 (facsimile)
                                SBN 00792137
                                johnkuchera@210law.com
                                Attorney for Appellant
                                 Table of Contents
                                                                            Page

Table of Contents                                                           ii

Table of Authorities                                                        iii-v

Walker never said that the pink methamphetamine was his and that he         1-5
 believed it to be only “cut”

To separately analyze each individual location where methamphetamine        5-7
 was found (to determine if an inference of possession is warranted) is not
 the same as addressing each “affirmative link” separately

It is not within the province of the jury to determine whether inferences   8-19
  it makes are reasonable. And the inferences the State asks this Court
  to make are not reasonable because they are not supported by
  a “chain of factual evidentiary antecedents.”

      (i) Rules for determining whether an inference is reasonable          9-11
      (ii) Instructive cases – inference of possession was not reasonable   11-13
      (iii) Instructive cases – inference of possession was reasonable      13-15
      (iv) The State’s inferences are not reasonable                        15-19


Certificate of Service                                                      19

Certificate of Compliance                                                   20




                                                                                    ii
                                           Table of Authorities

                                                                                                           Page(s)

Cases
Brewer v. State,
   126 S.W.3d 295, 297 Tex.App. .......................................................................... 10

Brown v. State,
   911 S.W.2d 744 (Tex. Crim. App. 1995) ............................................................. 6

County Court of Ulster County, N.Y. v. Allen,
  442 U.S. 140 (1979) .............................................................................................. 9

Evans v. State,
  202 S.W.3d 158 (Tex. Crim. App. 2006) ...........................................5, 6, 7, 8, 14
Evans v. State,
  98 So. 440 (Miss. 1924) ...................................................................................... 15
Fisher v. State,
   121 S.W.3d 38 (Tex.App.—San Antonio 2003, pet. ref’d)................................ 11
Franco v. State,
   82 S.W.3d 425 (Tex. App.—Austin 2002, pet. ref'd)......................................... 10

Grant v. State,
  989 S.W.2d 428 (Tex.App.—Houston [14th Dist.] 1999, no pet.) ....9, 14, 15, 17

H & R Block E. Enterprises, Inc. v. Swenson,
  2008 WI App 3, 307 Wis. 2d 390, 745 N.W.2d 421 ............................................ 8

Luke v. State,
   No. 14-99-01358, 2001 WL 82934 (Tex.App.—Houston [14th
   Dist.] 2001, no pet.) (unpublished) ...............................................................17, 18

Mahaffey v. State,
  364 S.W.3d 908 (Tex. Crim. App. 2012) ........................................................... 10

Marquez v. State,
  921 S.W.2d 217 (Tex. Crim. App. 1996) ........................................................... 10


                                                                                                                    iii
Moreno v. State,
  821 S.W.2d 344 (Tex.App.-Waco 1991, pet. ref'd) .............................................. 6
Nguyen v. State,
  222 S.W.3d 537 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) ................ 11

Paulman v. State,
  No. 2-07-291-CR, 2008 WL 4531707 (Tex.App.—Fort Worth Oct.
  9, 2008, pet. dism’d) (unpublished) ...................................................................... 6
People v. Davis,
  663 N.E.2d 39 (Ill. App. Ct. 1996) ..................................................................... 10

Peters v. Texas Dept. of Pub. Safety,
   404 S.W.3d 1 (Tex.App.—Houston [1st Dist.] 2013, no pet.) ............................. 8
State v. Guinn,
   242 S.W.3d 479 (Mo. Ct. App. 2008) ................................................................ 13
State v. McClain,
   968 S.W.2d 225 (Mo. Ct. App. 1998) ......................................................6, 12, 13
State v. Moiser,
   738 S.W.2d 549 (Mo. Ct. App. 1987) .................................................................. 6

Tot v. United States,
   319 U.S. 463 (1943) .............................................................................................. 9

United States v. Hernandez-Beltran,
  867 F.2d 224 (5th Cir. 1989) ................................................................................ 6
United States v. Longoria,
  569 F.2d 422 (5th Cir. 1978) .............................................................................. 18

United States v. Stewart,
  145 F.3d 273 (5th Cir. 1998) ............................................................................ 4, 5

United States v. Townsend,
  474 F.2d 209 (5th Cir. 1973) ....................................................................9, 11, 12

Young v. Wainwright,
  439 F.2d 426 (5th Cir. 1972) .............................................................................. 12


                                                                                                                     iv
Other Authorities
Black's Law Dictionary (6th ed. 1990) .................................................................... 10
New Webster’s Dictionary of the English Language (1971).................................. 10




                                                                                                           v
                                     IN THE
                                COURT OF APPEALS

           OF THE THIRD SUPREME JUDICIAL DISTRICT
   _____________________________________________________________


SHAWN MICHAEL WALKER,
    Appellant,

     v.                                                 No. 03-14-00473-CR


STATE OF TEXAS

    ____________________________________________________________
                       Appeal in Cause No. 72029
                      in the 264th District Court of
                           Bell County, Texas
    ____________________________________________________________

     REPLY BRIEF OF APPELLANT SHAWN MICHAEL WALKER
    ____________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES SHAWN MICHAEL WALKER, Appellant, by and through

undersigned counsel, and submits this reply brief pursuant to the provisions of the

Texas Rules of Appellate Procedure. Appellant raised two issues in his principal

brief. The State has filed its Brief. This Reply Brief is a response to several

assertions made by the State regarding Walker’s first issue. Appellant otherwise

rests on his principal brief.



                                                                                  1
Regarding Walker’s first issue: Whether the evidence was sufficient to sustain
Walker’s possession with intent conviction as a principal.


1. The State repeatedly states that there was evidence that Walker actually said that
the pink methamphetamine was his but that he believed it to be only “cut”:
      The appellant stated that the pink substance was his, but insisted that it
      was not methamphetamine but only “cut”, apparently referring to
      MSM. (RR5 – 13, 21, 23). He identified the picture of that pink
      substance recovered from the van. (State’s Exhibit 10). (RR5 – 11).

State’s Brief, pg. 7.

      [Appellant] admitted that [the pink methamphetamine] belonged to him
      but insisted that it was “cut” instead of methamphetamine itself.

State’s Brief, pg. 14.

      Appellant . . . admitted ownership of the “pink” methamphetamine,
      while claiming that it was only “cut.”

State’s Brief, pg. 15.

      The fact that [Appellant] admitted possession of what tested as more
      than 5 grams of methamphetamine while claiming that it was only a
      substance dealers used to dilute and add weight to the controlled
      substance surely supports an inference that he was aware of the
      contraband in the van and exercised care, custody, control, or
      management of it.

State’s Brief, pgs. 15-16.

      Appellant admitted that the “pink” methamphetamine belonged to him,
      while denying its identity.

State’s Brief, pg. 19.

      The Appellant claimed ownership of the “pink” methamphetamine

                                                                                    2
         found near a major quantity, expressing the mistaken belief that it was
         only “cut.” There was nothing in the evidence to show why he would
         possess “cut” except as part of the distribution of the
         methamphetamine.

State’s Brief, pg. 22.


         Appellant’s reply

         Walker never said the pink methamphetamine was his and he never said it was

“cut.” Walker did not testify at trial. The State did introduce a videotaped interview

of Walker - State’s Exhibit 24. It is worth noting that the State’s brief does not cite

to the interview itself. This is because nowhere in that interview did Walker ever

say the pink methamphetamine was his and nowhere in the interview did he ever say

he thought it was cut.1 The State instead cites to the trial testimony of what others

said about the interview:

         Vol. 5, pg. 13:

    State: Now, the pink methamphetamine, the stuff that the defendant said was his
     and that you had the conversation with him about?

    Defense Counsel: Objection. Misstatement of the evidence.

Here, the “testimony” is actually a question posed by the State to which Walker

objected as being a misstatement of the evidence.


         Vol. 5, pg. 21:


1
    Walker did say at one point “I don’t know how she got it pink.” Ex. 24, 4:10:01.
                                                                                       3
 State: In the interview, the defendant talks about MSM, correct?

 Detective Mallow: Yes, sir.

      Vol. 5, pgs. 22-23:

 State: Now, in this case, in your interview, you talked to the defendant about the
  pink dope, correct?

 Detective Mallow: Yes, sir.

 State: And that’s what he was primarily focused on, on testing it and making
  sure that it is dope?

 Detective Mallow: Right. Because he told me it was MSM.

But in the actual interview, Walker never says the words “cut” or MSM.”

      “We have seen the tape.” This quote comes from United States v. Stewart,

145 F.3d 273 (5th Cir. 1998) wherein the Fifth Circuit reversed appellant’s aiding

and abetting possession with intent to deliver cocaine conviction. Stewart was

driving a vehicle (that belonged to the passenger) and was stopped for a traffic

violation. Stewart hesitated when asked for consent to the search the vehicle but the

passenger gave consent to search and two weapons were found. As officers were

searching the passenger incident to arrest, they found 96 grams of crack cocaine in

his underwear. Id. at 275. The government relied on the arresting officer’s

testimony regarding Stewart’s conduct. The Fifth Circuit relied instead on the

videotape of the incident:

      [T]he government offers evidence from Garney [arresting officer] that
      Stewart appeared nervous during the traffic stop. Having reviewed the
                                                                                      4
      videotape recording of the entire stop, we find no support for the
      proposition that Stewart was unusually nervous or fidgety. Stewart was
      no more nervous during the stop than any other citizen who has been
      stopped on the side of the road by a police officer and required to stand
      outside his vehicle for more than forty minutes. . . . The government
      contends that Stewart hesitated before giving consent to search the
      vehicle, and then shrugged non-committally. The government cites this
      conduct as evidence of guilty knowledge. We have seen the tape. Once
      again, there is nothing surprising about Stewart’s conduct. The car was
      not his. (emphasis added)

Id. at 278.

      Likewise in the instant case, this Court need not defer to the trial testimony of

the State’s witnesses as to what said Walker supposedly said in the interview – this

Court can simply listen to the interview to hear what he actually did say – and did

not say.

>>>>>>>


2. The State takes Walker to task for analyzing the “evidentiary links” separately
instead of as a whole, citing Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006):

      The Appellant attempts to take these evidentiary links and separately
      consider them, arguing in essence that each link alone is insufficient to
      prove possession. That, however, is not the test, but rather the question
      is whether all the evidence, direct and circumstantial, when combined
      establishes a link with the contraband.

State’s Brief, pg. 15.



      Appellant’s reply


                                                                                     5
       The State confuses multiple evidentiary links with multiple locations of a

controlled substance. As Walker pointed out in his principal brief (pages 6-7),

possession is “location specific”; i.e. when a controlled substance is found in

multiple locations, each location must be analyzed separately to determine whether

there is evidence tending to tie the defendant to that location. In support of this

argument, Walker specifically cited as authority Brown v. State, 911 S.W.2d 744

(Tex. Crim. App. 1995); Moreno v. State, 821 S.W.2d 344 (Tex.App.-Waco 1991,

pet. ref'd); United States v. Hernandez-Beltran, 867 F.2d 224 (5th Cir. 1989) and

Paulman v. State, No. 2-07-291-CR, 2008 WL 4531707 (Tex.App.—Fort Worth

Oct. 9, 2008, pet. dism’d) (unpublished). The State’s brief makes to attempt to

address these cases.2         The State’s reliance on Evans v. State is inapposite. The

controlled substance at issue in Evans (cocaine) was all found in one place – not in

multiple locations:

       Immediately in front of appellant—within one foot of his arm—was a
       coffee table with numerous baggies of cocaine and pill bottles, also
       containing cocaine.


2
  Other instructive cases include State v. McClain, 968 S.W.2d 225, 226-227 (Mo. Ct. App. 1998)
(finding that the defendant's possession of methamphetamine was insufficient evidence to connect
him to bag containing items consistent with “meth lab equipment” that was found in a garage
closet, despite the fact the defendant was at the garage and he told the police that he saw another
person bring the bag into the garage and where the bag was located) and State v. Moiser, 738
S.W.2d 549, 558–59 (Mo. Ct. App. 1987) (holding that despite the fact there was sufficient
evidence to prove defendant possessed psilocybin mushrooms located in a box in the dining room,
the state provided insufficient evidence that the defendant possessed marijuana located in various
other locations in the house).

                                                                                                 6
Evans, 202 S.W.3d at 160.

      The State’s failure to recognize the need to consider the location of each of

the items of methamphetamine on its own merits is evidenced by the fact that the

State continues to treat all five items of methamphetamine as a single unit:

      When all the evidence, direct and circumstantial, is considered in the
      light most favorable to the verdict, the combined logical force of that
      evidence is sufficient for a rational jury to conclude beyond a
      reasonable doubt that the Appellant possessed the methamphetamine
      with the intent to deliver as charged in the indictment either
      individually, or as a party, or both.

State’s Brief, pg. 10.

      While in this case it is reasonable that the quantity alone is sufficient to
      support a finding of intent to deliver, other circumstances include the
      presence of the material used to dilute or increase the weight of
      methamphetamine that is sold. The only logical inference from that is
      that the accompanying methamphetamine was intended for delivery as
      no mere user would dilute or increase the weight of his drug.

State’s Brief, pg. 19.

      The Appellant and Tiffany Pierce were together in the van with a very
      large and valuable quantity of methamphetamine and the items used to
      process it for sale. They both had methamphetamine on their person.
      Clearly, . . . a rational jury could have found from the evidence and
      rational inferences based upon that evidence, beyond a reasonable
      doubt that the Appellant possessed the methamphetamine with intent to
      deliver either by his own conduct, [or] as a party with Tiffany Pierce[.]

State’s Brief, pg. 23.


>>>>>>>>>>>>>>>>>>>>



                                                                                     7
3. The State appears to cite Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)
for the proposition that the reasonableness of inferences made by jurors in support
of the verdict is a question of fact, and therefore “cannot be erroneous:

      Courts reviewing all evidence in the light most favorable to the verdict
      must assume that jurors made all inferences in favor of their verdict so
      long as reasonable minds could disregard all other inferences. Where
      the parties may disagree about the logical inferences from undisputed
      facts, the choice made by the fact finder cannot be erroneous.

State’s Brief, pg. 13.



      Appellant’s reply

      The State cites Evans for a proposition for which it does not stand. The issue

of whether or not an inference is reasonable is a question of law. H & R Block E.

Enterprises, Inc. v. Swenson, 2008 WI App 3, 307 Wis. 2d 390, 398-99, 745 N.W.2d

421, 425. What Evans says is that if there are multiple logical inferences that can

be made from undisputed facts, and those inferences are in conflict, a jury can

properly choose between the reasonable inferences:


      Although the parties may disagree about the logical inferences that flow
      from undisputed facts, “[w]here there are two permissible views of the
      evidence, the fact finder’s choice between them cannot be clearly
      erroneous.”

Evans, 202 S.W.3d at 162-63. It is not up to the jury to decide whether an inference

is reasonable. That is a job for the Court. See Peters v. Texas Dept. of Pub. Safety,


                                                                                      8
404 S.W.3d 1, 6 (Tex.App.—Houston [1st Dist.] 2013, no pet.) (“Although it is

certainly true that a fact-finder can draw reasonable inferences from the record, the

types of inferences that DPS argues are not ‘inferences’ at all – just mere speculation

and conjecture.”); Grant v. State, 989 S.W.2d 428, 434 (Tex.App.—Houston [14th

Dist.] 1999, no pet.) (“[I]t is not a reasonable inference that another person placed a

large and valuable amount of marijuana in appellant’s car. Such an alternative

explanation for the presence of the marijuana is incredible.”); United States v.

Townsend, 474 F.2d 209, 213 (5th Cir. 1973) (“A jury may draw the reasonable

inferences which the evidence warrants.”).



               (i) Rules for determining whether an inference is reasonable

      “It is often necessary for the trier of fact to determine the existence of an

element of the crime – that is an ‘ultimate’ or ‘elemental’ fact – from the existence

of one of more ‘evidentiary’ or ‘basic’ facts.” County Court of Ulster County, N.Y.

v. Allen, 442 U.S. 140, 156 (1979). To do so is to make an inference. Id. However,

for an inference to be reasonable there must be a rational connection between the

facts proved and the fact inferred. See Tot v. United States, 319 U.S. 463, 467 (1943).

“A reasonable inference within the purview of the law must have a chain of factual

evidentiary antecedents. If an alleged inference does not have a chain of factual

antecedents, then within the purview of the law it is not a reasonable inference but


                                                                                     9
is instead mere speculation.” People v. Davis, 663 N.E.2d 39, 44 (Ill. App. Ct. 1996)

“[W]ithout a single factual evidentiary antecedent to support it the State’s alleged

inference that Davis had the opportunity to commit the homicide cannot bear water.”

Id. at 45.

       As Walker noted in his principal brief:


   “In the law of evidence, an inference . . . is a logical consequence flowing
   from a proven fact.” Brewer v. State, 126 S.W.3d 295, 297 Tex.App.—
   Beaumont 2004, pet. ref’d). “Logic” is “the apparently unavoidable cause and
   effect relationship of events leading to a particular conclusion.” New
   Webster’s Dictionary of the English Language 562 (1971). “Logical
   relevancy” is defined thusly:
       Existence of such a relationship in logic between the fact of which
       evidence is offered and a fact in issue that the existence of the former
       renders probable or improbable the existence of the latter. Black's Law
       Dictionary 942 (6th ed. 1990).

(Appellant’s Brief, pg. 15). Examples: Mahaffey v. State, 364 S.W.3d 908, 913

(Tex. Crim. App. 2012) (“Here, the record reveals that the highway on which

appellant was driving was comprised of ‘clearly marked lanes for vehicular travel’

and, therefore, was a ‘laned roadway’ as described in the definitions statute. . . . It

logically follows that once the clear markings on that highway terminated, so, too,

did the corresponding ‘lane.’”); Marquez v. State, 921 S.W.2d 217, 224 (Tex. Crim.

App. 1996) (Because a defendant has a right to a jury trial, it logically follows that

he has the right to waive his right to a jury trial); Franco v. State, 82 S.W.3d 425,

428 (Tex. App.—Austin 2002, pet. ref'd) (“If Franco was willing to take a breath

                                                                                    10
test after being told that he would lose his driver's license for ninety days if he

refused, it logically follows that he would have been willing to take the test if he had

also been told that a refusal would result in the additional loss of his commercial

license for one year.”); Fisher v. State, 121 S.W.3d 38, 40-41 (Tex.App.—San

Antonio 2003, pet. ref’d) (Given that it is improper for an expert witness to offer a

direct opinion as to the truthfulness of another witness, “it logically follows that a

lay witness is not permitted to offer an opinion that another witness is truthful.”);

Nguyen v. State, 222 S.W.3d 537, 541 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref'd) (“If the defendant can waive his right to object that no PSI was prepared, it

logically follows that a defendant can waive the right to complain about a part of the

PSI being left out.”).




         (ii) Instructive cases – inference of possession was not reasonable

      In United States v. Townsend, 474 F.2d 209 (5th Cir. 1973), wherein the

defendant was convicted of theft of equipment from a military reservation (the

federal offense charged required proof that the theft actually took place on a military

reservation), the question addressed was “whether possession of the property off the

military base can give rise to the inference that the property was received or

concealed on the base.” Id. at 211. Under the evidence adduced, the Fifth Circuit

answered the question in the negative:

                                                                                     11
      There is an important difference between the inference from possession
      to theft and the inference from possession outside the jurisdiction of the
      United States to possession inside the jurisdiction of the United States.
      It comes down, not to a question of law as such, but to a question of
      geography. The difference is simply this, if possession would, as we
      have held, support the inference of theft it must support the inference
      of the location of the theft, because this theft could occur at only one
      single location. That is, the theft had to occur at the Officers' Club. On
      the other hand, the receiving and concealing of the stolen property
      could have occurred for the first time at any number of locations which
      were not within the special jurisdiction of the United States. In fact, the
      only evidence on the question first places Appellant in possession of the
      stolen equipment at Lubbock, Texas-ten miles from the scene of the
      crime. (emphasis added)

Id. at 214. The Fifth Circuit went on to contrast this set of facts from the facts in

Young v. Wainwright, 439 F.2d 426 (5th Cir. 1972) wherein an inference of breaking

and entering was reasonable based on possession of stolen property:


      [P]ossession of recently stolen property would support an inference of
      breaking and entering with intent to steal [where the] crime . . . could
      occur only in a single location, i. e., the location where the property was
      stolen during a burglary.

Townsend, 474 F.2d at 214.

      In State v. McClain, 968 S.W.2d 225 (Mo. Ct. App. 1998), wherein the

appellant was convicted of attempted to manufacture methamphetamine, the relevant

facts were as follows. Appellant was detained in the service area of an auto repair

garage. In the closet of the garage office, a blue bag containing items “consistent

with meth lab equipment” were found. Appellant was searched and found to be in

possession of a pouch containing powder that tested positive for methamphetamine.

                                                                                    12
When questioned, Appellant stated that the blue bag had been behind the garage

when he got there and another individual brought it inside. Id. at 226. The State

argued on appeal that the pouch with powder found on Appellant’s person “indicates

that Appellant had a familiarity with methamphetamine.” The Court of Appeals

disagreed:

      Although Appellant told [the officer] that the blue bag was behind he
      garage when “they” got there, nothing in the evidence indicates the bag
      was then unzipped. However, even if it was, there is no evidence that
      Appellant was close enough to the bag to see what was in it.
      Furthermore, even if he saw the contents, and even if he recognized
      them as items used to manufacture methamphetamine, such knowledge
      alone does not support a finding that Appellant had possession of the
      items.

Id. at 227.

      In State v. Guinn, 242 S.W.3d 479 (Mo. Ct. App. 2008), the evidence showed

only that the defendant had walked out of a room in which there was

methamphetamine on a scale. Id. at 483. The Missouri Court of Appeals held that

it was not reasonable to infer that because he was walking out of the otherwise

unoccupied room, he had been the person measuring the methamphetamine: “[T]he

mere possibility that Guinn saw the methamphetamine on the scale and was the

closest person to it when he was arrested” did not create a reasonable inference that

he possessed it. Id. at 484.



              (iii) Instructive cases – inference of possession was reasonable
                                                                                  13
      Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006):

      The State argues that the single most important link or connection
      between appellant and the fourteen grams of cocaine rocks is the simple
      fact that he was sitting directly in front of them. They were within arm's
      reach; the coffee table was less than a foot away. This evidence
      constitutes two extremely strong “presence” and “proximity” links.
      Appellant was not merely present in a house with drugs cached away
      somewhere, they were right under his nose. The drugs were in plain
      view—a third link. He was alone in the house—a fourth link. He
      immediately admitted that he knew why the police had walked in the
      door—“Drugs.” That is a fifth link. He received mail at 923 Lombrano,
      thus raising a reasonable inference that he lived there, which, in turn,
      raises a reasonable inference that he had actual care, custody, and
      control of items found in plain view on the coffee table. This is a sixth
      link. He had $160 in twenties in his pocket, but he was apparently
      unemployed. This is a seventh, albeit weak, link. The State argues that
      the sum total of this circumstantial evidence is sufficient to support a
      rational jury's finding, beyond a reasonable doubt, that appellant
      exercised actual care, custody, control, or management of the fourteen
      grams of cocaine on the coffee table. We agree. (emphasis added)
Id. at 163.


      In Grant v. State, 989 S.W.2d 428 (Tex. App.—Houston [14th Dist.] 1999, no

pet.), the Fourteenth Court held that the jury could reasonably infer possession:

      [A]ppellant was the sole occupant and driver of the car; appellant had
      been driving the car for a couple of days as part of his job; the
      marijuana was under the driver's seat, and thus close to appellant;
      appellant had the only set of keys to the car; the closed bag containing
      the marijuana could be readily seen by anyone opening the rear
      passenger door and looking inside the car; the marijuana was wrapped
      securely enough that its odor did not spread throughout the car; and the
      drugs were not in a secret compartment of the car.




                                                                                    14
Id. at 434; see also Evans v. State, 98 So. 440, 442 (Miss. 1924) (two buckets of

whiskey, along with mash, found at recently operated still, and defendant coming

and going therefrom allowed for reasonable inference that defendant manufactured

or assisted in the manufacture of the two buckets of whiskey).




                (iv) The State’s inferences are not reasonable


      The State says that all that can be inferred about Pierce’s relationship to the

van is that she was driving the van:


      Ms. Pierce, who had no relationship to the van belonging to the
      Appellant’s girlfriend but was driving the van occupied by the
      Appellant[.]

State’s Brief, pg. 23. The State is ignoring the additional facts that the van was full

of women’s clothes (no mention of men’s clothes) and it “[a]ppeared like somebody

might have been living in the vehicle.” 4 RR 49, 60, 68, 71. The large items of

methamphetamine were found in a bag containing women’s clothing (“bag behind

the driver’s seat” – 40.58 grams) and inside a laundry bag wrapped in a pair of

women’s pants (“frisbee methamphetamine” – 56.92 grams). 4 RR 51-52, 58-60,

88, 103. These facts would allow an inference of more than that Pierce was simply

driving the van. They would also allow the reasonable inferences that she had been




                                                                                    15
living out of the van and that she had cached the large quantities of

methamphetamine.

      The State argues that because there was evidence that the van belonged to

Walker’s girlfriend or wife, he therefore had the sole right to control the van.

      Appellant told both the arresting officer and the detective that the van
      belonged to his girlfriend or wife. He stated that Ms. Pierce was not
      the person in question and that the other two people in the van were
      recently arrived passengers. The jury could reasonably find from that
      Appellant had the right to control that van. . . . Someone had control
      over it or the right to control it.

State’s Brief, pg. 16.

      No one else in the van had any right to control the van except the
      Appellant.

State’s Brief, pg. 22. But does the “chain of factual evidentiary antecedents” allow

one to reasonably infer this? When Walker was asked to consent to a search of the

van, he said the van didn’t belong to him and thus he couldn’t give permission for a

search. 4 RR 25-26. As noted above, it appeared that a woman had been living out

of the van. And a woman was driving the van. While it cannot reasonably be

inferred that Pierce owned the van, it can certainly be inferred that she did exercise

some control over the van. Even if some control of the van by Walker can be

inferred, he was not the only person who had control. However, the “ultimate”

“elemental” facts that State had to prove were possession of methamphetamine with

intent to distribute – not control of the vehicle. As noted above, given that the large


                                                                                    16
quantities of methamphetamine were cached with women’s clothing allows for the

reasonable inference that Pierce possessed them – not Walker. Unlike the defendant

in Grant, who had been driving the vehicle as the sole occupant for two days, there

is no “factual evidentiary antecedent” in this case establishing (1) that Walker had

been in the van for more than a short period of time, or (2) that he had ever been in

the van as the sole occupant.

      The State cites Luke v. State, No. 14-99-01358, 2001 WL 82934 (Tex.App.—

Houston [14th Dist.] 2001, no pet.) (unpublished) in support of its argument that

Walker’s “close relationship” with the van’s owner somehow “linked” him to the

methamphetamine found therein. State’s Brief, pg. 16. The State fails to point out

the other “chain of factual evidentiary antecedents” present in Luke (wherein the

defendant was essentially caught with a small bag of cocaine in his hand):

      Luke argues that his mere proximity to the crack cocaine is the only
      evidence linking him to the possession of it, and that such evidence is
      legally and factually insufficient to support this conviction. Luke,
      however, overlooks the fact that mere proximity is not the only
      evidence linking him to the possession of the substance. In fact, Luke
      exercised sole possession over the vehicle where the crack cocaine was
      found until just minutes before the traffic stop, not to mention the fact
      that he is “closely related” to the owner of the vehicle. At the time of
      the traffic stop, Luke sat in the passenger side of the vehicle, which is
      where Officer Johnson found the 5.5 gram crack cocaine cookie.
      Moreover, once the officers pulled over the vehicle, Johnson observed
      Luke making a furtive gesture in an apparent attempt to hide the crack
      cocaine. Johnson found the crack cocaine in the vehicle partly because
      of this furtive gesture and partly because when he looked in the car he
      saw a bit of a plastic bag and a corner of the cookie. (emphasis added)


                                                                                  17
Luke, 2001 WL 82934, at *3.

      The State also suggests that it is reasonable to infer that no mere user would

be in possession of material (MSM) used to increase the weight of the

methamphetamine:

      While in this case it is reasonable that the quantity alone is sufficient to
      support a finding of intent to deliver, other circumstances include the
      presence of the material used to dilute or increase the weight of
      methamphetamine that is sold. The only logical inference from that is
      that the accompanying methamphetamine was intended for delivery as
      no mere user would dilute or increase the weight of his drug.

State’s Brief, pg. 19. The State’s inference, as a general proposition, is certainly

reasonable. But it begs the question – who possessed the MSM? Just as the

defendant in McLain, there is no evidence that Walker ever saw the MSM, let alone

possessed it. For the reasons set forth above, the reasonable inference is that Pierce

possessed the MSM – not Walker.

      That State also makes the gigantic (and unwarranted) leap of inferring that

because Walker had a user amount of methamphetamine on his person, he was

therefore also in possession of the large amounts found in the van:


      The Appellant and Tiffany Pierce were together in the van with a very
      large and valuable quantity of methamphetamine and the items used to
      process it for sale. They both had methamphetamine on their person.

State’s Brief, pg. 23. Walker would ask this court to note United States v. Longoria,

569 F.2d 422 (5th Cir. 1978), summarized in Appellant’s principal brief at pages 32-


                                                                                     18
33, wherein the Fifth Circuit reversed appellant’s conviction, holding inter alia, that

the fact that appellant had traces of marijuana in her pocket book did not establish

knowledge of or an intent to distribute the 176 pounds of marijuana found in

suitcases located in the trunk of the vehicle.


                                        Respectfully submitted,
                                        /s/ John A. Kuchera
                                        John A. Kuchera
                                        210 N. 6th St.
                                        Waco, Texas 76701
                                        (254) 754-3075
                                        (254) 756-2193 (facsimile)
                                        SBN 00792137
                                        johnkuchera@210law.com
                                        Attorney for Appellant


                                Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing

Appellant’s Reply Brief has this day been mailed to the office of Mr. Bob D. Odom,

Assistant District Attorney, P.O. Box 540, Belton, Texas 76513.

      SIGNED this 13th day of February, 2015.

                           /s/ John A. Kuchera
                           John A. Kuchera,
                           Attorney for Shawn Michael Walker




                                                                                    19
                    Certificate of Compliance with Rule 9.4

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)
because the brief contains 4,717 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(1).


2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and
the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times
New Roman, size 14 font.



                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Shawn Michael Walker


Dated: February 13, 2015




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