                                                                           ACCEPTED
                                                                       01-14-01010-CR
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  7/29/2015 2:50:56 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK


        No. 01-14-01010-CR
                 In the                           FILED IN
           Court of Appeals                1st COURT OF APPEALS
                                               HOUSTON, TEXAS
                For the                    7/29/2015 2:50:56 PM
    First Judicial District of Texas       CHRISTOPHER A. PRINE
              At Houston                           Clerk

       
            No. 1420051
    In the 337th District Court of
        Harris County, Texas
       

      MARCUS D. JACKSON
               Appellant
                   v.
     THE STATE OF TEXAS
                Appellee
       
   STATE’S APPELLATE BRIEF
       
                                 DEVON ANDERSON
                                 District Attorney
                                 Harris County, Texas
                                 CARLY DESSAUER
                                 Assistant District Attorney

                                 JOSEPH SANCHEZ
                                 Assistant District Attorney

                                 Harris County, Texas
                                 1201 Franklin, Suite 600
                                 Houston, Texas 77002
                                 Tel.: 713/755-5826
                                 Fax No.: 713/755-5809
ORAL ARGUMENT NOT REQUESTED
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure P. 39.1, the State does not requests oral argument.

                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

      Counsel for the State:
             Devon Anderson  District Attorney of Harris County
             Carly Dessauer  Assistant District Attorney on appeal
             Joseph Sanchez  Assistant District Attorney at trial
             Lauren Bard  Assistant District Attorney at trial
             Erik Locascio  Assistant District Attorney at trial
      Appellant or criminal defendant:
             Marcus D. Jackson  pro se at trial
      Counsel for Appellant:
             Kyle B. Johnson  Attorney on appeal
             Alex G. Azzo  Standby attorney at trial
      Trial Judge:
             Hon. Renee Magee
             Hon. Jay W. Burnett
             Hon. Lee Duggan
             Hon. Leslie Brock Yates
             Hon. A. Reagan Clark
             Hon. Mike Wilkinson



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                                              TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .................................................... ii

IDENTIFICATION OF THE PARTIES ......................................................................... ii

TABLE OF AUTHORITIES ............................................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................. 3

REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 3

I. The evidence presented at trial is sufficient to prove beyond a reasonable
   doubt that the amount of PCP that appellant possessed weighed more than
   one gram. ........................................................................................................................... 3

CONCLUSION ..................................................................................................................... 9

CERTIFICATE OF COMPLIANCE .............................................................................. 10

CERTIFICATE OF SERVICE ......................................................................................... 11




                                                                        iii
                                          TABLE OF AUTHORITIES

CASES
Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................................................... 4
Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007) ..................................................................... 4, 6
Gear v. State,
  340 S.W.3d 743 (Tex. Crim. App. 2011) ..................................................................... 4, 6
Isassi v. State,
   330 S.W.3d 633 (Tex. Crim. App. 2010) ......................................................................... 4
Jackson v. Virginia,
   443 U.S. 307 (1979)........................................................................................................ 4, 6

STATUTES
TEX. HEALTH & SAFETY CODE ANN. §481.102(8) (West 2009) ...................................... 5
TEX. HEALTH & SAFETY CODE ANN. §481.115(a),(c) (West 2009) ................................. 5

RULES
Tex. R. App. P. 9.4(g)............................................................................................................. ii
Tex. R. App. P. 9.4(i)............................................................................................................ 10
Tex. R. App. P. 38.2(a)(1)(A)................................................................................................. ii
Tex. R. App. P. 39.1 ............................................................................................................... ii




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TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

      Appellant was charged with possession of a controlled substance, namely

phencyclidine or PCP, weighing more than one gram and less than four grams (CR at

13; 6 RR at 167). He entered a plea of not guilty, and a jury trial was held to

determine guilt (CR at 88, 109; 6 RR at 12). The jury found appellant guilty (CR at

107, 109-10; 6 RR at 235).      The trial court sentenced him to thirty-five years

confinement in the Texas Department of Criminal Justice (CR at 109-10; 7 RR at 61).

The court certified appellant’s right to appeal, and appellant filed a timely notice of

appeal (CR at 108, 112-13).

                              STATEMENT OF FACTS

      On March 4, 2014, two officers, Jeffrey Sneed and Diego Morelli, were working

an extra security job at an apartment complex (6 RR at 24, 26, 101). The complex was

known for narcotics activity, particularly PCP, so the officers were suspicious when

they saw appellant enter the complex through a pedestrian gate, walk across the

parking lot, met an unidentified man at a place where narcotics transactions usually

occurred, and immediately turn to leave (6 RR at 26, 27, 28, 29, 30, 31, 32, 47, 107,

111, 113, 116, 117). They suspected that a hand-to-hand narcotics transaction had

just occurred, so they approached appellant while he was attempting to leave the

complex (6 RR at 31, 32, 118, 119). Immediately the officers smelled the strong odor

of PCP surrounding appellant, so they stopped him (6 RR at 32-34, 47, 68, 119, 120).

                                             1
      After confirming that appellant did not live at the apartment complex, Officer

Sneed asked appellant if he was “holding a PCP stick” (6 RR at 34, 35, 68, 119).

Appellant said yes and held out his right hand to reveal a cigarette that had been

dipped in PCP (6 RR at 33, 35, 48, 68, 96, 119, 120, 121). When the officers went to

arrest appellant, they found another PCP stick in appellant’s other hand (6 RR at 35,

121). Appellant explained to Officer Sneed: “I’ve had rough times at the house. I

was just trying to smoke them away” (6 RR at 36).

      The combined weight of both cigarettes was 1.93 grams, and both tested

positive for PCP (6 RR at 166, 167, 168). Chemist M. Kane, who tested the evidence,

noted that both cigarettes were discolored, which in her experience was a visible

indicator that they probably contained PCP (6 RR at 168, 171, 180-81; 8 RR at 5). On

cross-examination, Kane agreed that cigarettes would absorb any liquid they touched

(6 RR at 172). She also agreed that when PCP is a liquid, it can contaminate

substances it touches but stated that she did not know if it was possible for the plastic

baggie holding the PCP sticks to be contaminated without testing (6 RR at 180).

When asked again if PCP would contaminate anything it touches, Kane only testified

that it was possible (6 RR at 183).




                                              2
                        SUMMARY OF THE ARGUMENT

      The evidence presented at trial is sufficient to prove beyond a reasonable doubt

that appellant possessed over one gram of PCP at the time of his arrest. As both

officers identified the cigarettes in appellant’s hands as PCP sticks, as appellant

admitted to possessing PCP, as the chemist’s testified that in her experience,

discolored cigarettes contain PCP most of the time, and as the record was not

developed regarding how likely it could be for one PCP stick to contaminate an

unadulterated cigarette, the jury’s verdict is rational and supported by the evidence.

                REPLY TO APPELLANT’S POINT OF ERROR

I. The evidence presented at trial is sufficient to prove beyond a reasonable
   doubt that the amount of PCP that appellant possessed weighed more than
   one gram.
      In his sole point of error, appellant argues that the evidence is insufficient to

support the jury’s finding that appellant possessed more than one gram of PCP at the

time of his arrest. Appellant relies on a theory of contamination to contend that no

rational jury could have found the weight necessary to support appellant’s conviction

because both PCP sticks in his possession were kept in the same plastic baggie.

However, in making this argument, appellant overlooks evidence in the record that

supports the jury’s finding that appellant possessed over one gram of PCP and

overlooks the dearth of evidence regarding the possibility of PCP contamination in

the record. Because the evidence that appellant possessed two PCP sticks at the time




                                               3
of his arrest rationally supports the jury’s determination of the weight of the

controlled substance, appellant’s point of error should be overruled.

                                 Standard of Review

      Appellate courts review a challenge to the sufficiency of the evidence under the

standard announced in Jackson v. Virginia, 443 U.S. 307, 318-20 (1979). See Brooks v.

State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Under the Jackson standard,

evidence is insufficient to support a conviction if, considering all record evidence in

the light most favorable to the verdict, no rational jury could have found that each

essential element of the charged offense was proven beyond a reasonable doubt.

Jackson, 443 U.S. at 317-19; Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

Reviewing courts consider both direct and circumstantial evidence and all reasonable

inferences that may be drawn from the evidence to determine whether any rational

fact finder could have found the elements of the offense beyond a reasonable doubt.

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

      The jury is the exclusive judge of the credibility of witnesses and the weight of

the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). As such, the

reviewing court defers to the jury to resolve any conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from “basic facts to ultimate facts.”

Jackson, 443 U.S. at 318; Clayton, 235 S.W.3d at 778.




                                               4
                                    Applicable Law

      A person commits an offense if he intentionally or knowingly possesses PCP.

TEX. HEALTH & SAFETY CODE ANN. §481.102(8) (West 2009); TEX. HEALTH &

SAFETY CODE ANN. §481.115(a),(c) (West 2009).

                                        Analysis

      Despite appellant’s contention that the evidence presented at trial was

insufficient to show that he possessed more than one gram of PCP, any rational jury

would have found that appellant had two PCP sticks in his hands when arrested.

      While appellant relies on a contamination theory to attack the sufficiency of the

evidence, he ignores that the record before the jury was under developed in this

aspect.   Indeed, the only evidence appellant can point to for his theory of

contamination is Kane’s agreement to appellant’s question that “PCP, it sucks in, it’s a

fluid, it sucks in, it takes up everything, filters, everything, whatever it touches” (6 RR

at 180). However, Kane only acknowledged in her testimony that it was possible that

PCP could contaminate things by touch without providing any opinion as to how

probable the likelihood of contamination would be when asked by appellant (6 RR at

183). When questioning Kane at trial, appellant did not ask her specifically whether

one PCP stick could contaminate a cigarette unadulterated with PCP by spending 49

days in the same bag—the central claim he raises in his brief; instead, appellant merely

asked if PCP contaminated the plastic baggie holding the evidence (6 RR at 180).

Thus, the record presents no evidence that could undermine the jury’s verdict based

                                               5
on the theory that appellant makes on appeal because the evidence did not provide

any indication of the likelihood of possible touch contamination.

      The record simply does not contain enough information on the possibility of

touch contamination to render the evidence insufficient. While appellant tries to

buttress his theory of contamination by proposing that the jury could have made

inferences about the probability of contamination based on the strong odor of the

PCP, no rational jury could leap from the fact that PCP smells strongly to the

conclusion that the PCP in one cigarette would spread to the other cigarette if it did

not already contain PCP. Especially when considering the other evidence in the

record that supports the jury’s finding regarding the weight of the PCP in appellant’s

possession, the evidence is sufficient beyond a reasonable doubt. See Jackson, 443

U.S. at 317-19; Gear v. State, 340 S.W.3d at 746.

      First, the evidence is sufficient because the officers presented evidence that

both cigarettes found in appellant’s possession contained PCP.            Officer Sneed

testified that he identified both cigarettes held in appellant’s hands as PCP sticks at

the time of arrest (6 RR at 35). Similarly, the jury could infer that Officer Morelli also

identified the cigarettes as PCP sticks because he labeled the evidence bag as such (6

RR at 102-4, 181-81; State’s Ex. 1). See Clayton, 235 S.W.3d at 778 (noting that

reasonable inferences can be made from the evidence presented at trial). Adding to

these identifications from the time of appellant’s arrest, the manner in which the

cigarettes appeared and the manner in which appellant carried them also supports the

                                               6
jury’s verdict. Morelli noted that both cigarettes were the same brand, and Sneed

testified that appellant clasped both cigarettes in his hands (6 RR at 35, 105). Both

officers testified that they suspected that appellant engaged in a hand-to-hand

narcotics transaction with the unidentified man in the complex andsoon after

discovered the PCP stick in his hands (6 RR at 31, 32, 118, 119). From this evidence,

the jury could reasonably infer that appellant obtained both cigarettes from the same

source and that both contained PCP. Given that both cigarettes were identified by

the officers as PCP sticks when appellant was arrested, that they were the same brand,

and that appellant held both in his hands after the hand-to-hand transaction, the

evidence rationally supports the jury’s determination that both contained PCP.

      Second, the evidence is sufficient to prove that both cigarettes contained PCP

at the time of appellant’s arrest because Kane testifies that she anticipated that the

cigarettes would contain PCP based on their appearance. Kane noted that both

cigarettes were discolored in her testimony and in her report (6 RR at 168, 180-81; 8

RR at 5). She informed the jury that from her experience of testing similar evidence,

she has recognized that when she tests discolored cigarettes “most of the time it’s

PCP” (6 RR at 168, 180-81; 8 RR at 5). Kane testified that when she is presented with

a discolored cigarette “I still do the testing before I can tell exactly what’s present,

because I have had [sic] cigarette before where there was nothing in there even though

it was discolored,” but “most of the time when I get this color of manufactured

cigarette, it comes back with positive for PCP” (6 RR at 171, 181). Combined with

                                              7
Officer Morelli’s testimony that both cigarettes were in substantially the same

condition at trial as they were when he took custody of them, Kane’s testimony that

both cigarettes were the same color as cigarettes that had tested positive for PCP in

her experience strongly supports the jury’s finding that both cigarettes contained PCP

when Morelli bagged them as evidence (6 RR at 105). As such, the evidence is

sufficient to support the jury’s determination.

      Finally, the evidence is sufficient because appellant admitted that he possessed

PCP when he encountered the officers. Appellant, when asked by Officer Sneed

whether he was holding “a PCP stick,” answered that he was and showed the officer

the cigarette that he had in his right hand (6 RR at 35, 48, 68, 119, 120, 121).

Mentioned above, appellant had a second cigarette of the same brand in his left hand

(6 RR at 35, 105, 121). Appellant also admitted that he knew PCP was bad for him to

smoke but needed it to help him cope with his troubles at home (6 RR at 35-36).

Given this admission by appellant at the time of his arrest that he possessed PCP and

held two cigarettes in his hands immediately after engaging in what appeared to be a

hand-to-hand transaction to the officers, the jury’s verdict is rational and supported by

the evidence.

      In light of this evidence that both cigarettes were identified as PCP sticks at the

time of appellant’s arrest, that the chemist’s experience led her to anticipate that both

cigarettes would contain PCP based on their shade of discoloration, and that appellant

admitted to possessing PCP to the officers, appellant’s theory of contamination does

                                              8
not render the jury’s determination of the weight of the PCP in his possession

irrational. Any rational jury could not reasonably conclude based on the evidence

presented in the record that one PCP stick contaminated an unadulterated cigarette

while waiting testing. As such, the evidence sufficiently supports the jury’s rational

determination that appellant possessed over one gram of PCP. Thus, this Court

should overrule appellant’s point of error.

                                   CONCLUSION

      The State of Texas respectfully urges the Court to overrule appellant’s point of

error and affirm his conviction.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas

                                                    /s/                           Carly Dessauer
                                                    ________________________________________________________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083
                                                    dessauer_carly@dao.hctx.net
                                                    curry_alan@dao.hctx.net




                                              9
                      CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 2,058 words, based upon the representation provided by the word

processing program that was used to create the document. Tex. R. App. P. 9.4(i).




                                                    /s/                           Carly Dessauer
                                                    ________________________________________________________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




                                            10
                         CERTIFICATE OF SERVICE

      The State will serve a copy of the foregoing instrument to appellant’s attorney

though TexFile:

Kyle B. Johnson
Attorney at Law
The Kiam Building
929 Preston, Suite 200
Houston, Texas 77002
kbjohnsonlaw@sbcglobal.net



                                                    /s/                           Carly Dessauer
                                                    ________________________________________________________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




Date: July 29, 2015




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