                                                                                   ACCEPTED
                                                                              03-14-00260-CR
                                                                                     3599727
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                       12/29/2014 11:07:16 AM
                                                                             JEFFREY D. KYLE
                                                                                       CLERK


                    No. 03-14-00260-CR
                                                              FILED IN
                                                       3rd COURT OF APPEALS
                           In the                          AUSTIN, TEXAS
                      Court of Appeals                12/29/2014 11:07:16 AM
            Of the Third Supreme Judicial District       JEFFREY D. KYLE
                                                               Clerk
                        Austin, Texas

                  FRANK RICCI FLORES,
                       Appellant

                              v.

                    The State of Texas,
                         Appellee

         Appeal from the 391st Judicial District Court
                 Tom Green County, Texas
              Cause Number A-12-0701-SA


                      STATE’S BRIEF


                             Allison Palmer
                             District Attorney
                             51st Judicial District

                             Leland Lacy
                             Assistant District Attorney
                             124 W. Beauregard, Suite B
                             San Angelo, Texas 76903
                             (325) 659-6583
                             (325) 658-6831 FAX
                             Leland.lacy@co.tom-green.tx.us
                             State Bar No. 24057953

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii

Statement of the Case....................................................................... iii

Statement of Facts ............................................................................ 2

State's Counterpoint One .................................................................. 3

Summary of the State's Argument ..................................................... 4

Argument and Authorities .................................................................. 4

Prayer ............................................................................................... 6

Certificate of Compliance .................................................................. 7

Certificate of Service ......................................................................... 7




                                                      i
                            Index of Authorities

   Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................... 4

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ..................... 5

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................ 5




                                        ii
                        Statement of the Case

      Frank Ricci Flores was indicted on September 12, 2013, for

Possession of a Controlled Substance, to-wit heroin less than a gram,

enhanced to a Second Degree Felony by two prior convictions. (C.R.

p. 7). Flores was found guilty of the indicted charge by a jury on

February 25, 2014. (R.R. Vol. 5 p. 60). Flores elected to have the

jury assess punishment. (C.R. p. 37). Flores pled “not true” to the

enhancements. (R.R. Vol. 6 p. 13). The jury found the enhancements

to be true and assessed punishment at 12 years confinement in

Texas Department of Criminal Justice Institutional Division and a fine

of $5,000.00. (R.R. Vol. 6 pp. 74-75). The Court sentenced the

Defendant to that punishment. (R.R. Vol. 6. p. 77). Flores timely filed

a Motion for New Trial and Motion in Arrest of Judgment stating that

the verdict was contrary to the law and the evidence. (C.R. p. 65).

This Motion contained a certification that a copy of the Motion was

hand-delivered to the Trial Court.         (C.R. p. 66).   The Trial Court

certified that Flores had the right to appeal. (C.R. p. 43).




                                     iii
                          No. 03-14-00260-CR

                                In the
                           Court of Appeals
                 Of the Third Supreme Judicial District
                             Austin, Texas

                         FRANK RICCI FLORES,
                              Appellant

                                   v.

                          The State of Texas,
                               Appellee

             Appeal from the 391st Judicial District Court
                     Tom Green County, Texas
                  Cause Number A-12-0701-SA

                            STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

that of the appellant.




                                        1
                          Statement of Facts

      Flores was stopped for a traffic violation on May 18, 2012, by

Officer Ryan Morgan of the San Angelo Police Department in the City

of San Angelo, Tom Green County, Texas. (R.R. Vol. 4 p. 18). After

Flores stopped his vehicle, he opened the door of the vehicle and

exited the vehicle. (R.R. Vol.4 p. 19 lines 13-15). The officer saw two

pill bottles in the driver’s door. (R.R. Vol. 4 p. 20 lines 21-25). One of

the bottles was empty and one contained a small piece of heroin.

(R.R. Vol. 4; p. 20 lines 3-6). Flores was taken to the Tom Green

County jail and was searched prior to being taken into the jail. (R.R.

Vol. 4 pp. 23 line 23 - p. 24 line 1). At this time the Flores was

searched and another small amount of heroin was found in the

baseball cap that was removed from the Flores’ head. (R.R. Vol. 4 p.

24 lines 3-11). Marissa Silva, a chemist with the Texas Department

of Public Safety testified that the substance was heroin. (R.R. Vol. 4

p. 54 lines 18-25). Silva also testified that the combined weight of the

two separate packages of heroin was .18 grams and would be about

the size of two eraser parts of the end of a pencil. (R.R. Vol. 4 p. 58

lines 4-7).



                                      2
      Carlota Menchacha testified that she and the Flores were living

together at the time the Defendant was arrested. (R.R. Vol. 5 p. 10

lines 13 - p. 11 line 6). Menchacha further testified that she was in

control of the automobile earlier in the day on the day the Flores was

arrested. (R.R. Vol. 5 p. 11 lines 8-9). Menchacha testified that the

insurance on the vehicle was in her name. (R.R. Vol. 5 p.13 lines 1-9)

She testified that she had used the vehicle earlier in the day and had

purchased heroin and had left the herion in the car (R.R. Vol. 5 p. 15

line 5 - p. 16 line 20). Specifically Menchacha testified that she left

one “paper” of heroin in a pill bottle and one “paper” in a cap. (R.R.

Vol. 5 p. 18 lines 18-21). Ms. Menchacha testified that Flores was

not aware that the drugs were in the car. (R.R. Vol. 5 p. 18 line 25; p.

19 line 9).



                      State’s Counterpoint One

The verdict is supported by legally sufficient evidence.




                                     3
                        Summary of the Argument

      Officer Morgan testified that he found heroin inside a pill bottle

in a car under the Appellant’s sole care, custody and control. Officer

Morgan testified that he found heroin within Appellant’s hat during a

search at the jail. A chemist with the Midland crime lab testified that

the substance was heroin.



                        Argument and Authorities

      In Texas, evidence to support a verdict is legally sufficient if

viewed in a light most favorable to the verdict, the evidence, and all

reasonable inferences there from would allow a rational trier of fact to

find the essential elements of the crime beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 895, 916 (Tex. Crim. App. 2010).

      Officer Morgan testified at trial that the alleged heroin was found

in a pill bottle that was found within the door panel in appellant’s car.

(R.R. Vol. 4 pp. 20).    Officer Morgan testified that when he searched

Appellant at the jail another paper of heroin was found in the

Appellant’s hat. (R.R. Vol. 4 p. 24).




                                        4
      When conducting review on appeal, an appellate court is required

to defer to the jury's role as the sole judge of witness credibility, and the

weight their testimony is to be afforded. Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999). To find legal sufficiency, "[e]ach fact

need not point directly and independently to the guilt of the defendant,

as long as the cumulative force of the incriminating circumstances is

sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). Menchacha testified that she had purchased

the heroin found in the defendant’s hat and the heroin that was found in

the pill bottle she had purchased previously. (R.R. Vol. 5 pp. 15-18).

Menchaca also testified that she could not remember the name of the

person she bought the heroin from or the location of where the heroin

was purchased (R.R. Vol. 5 pp. 30-31). Menchacha testified to being

a daily heroin user for three years prior to Appellant’s arrest for this

offense.    (R.R. Vol. 5 pp. 30-33).          The jury determined that

Menchacha’s testimony was not credible and did not overcome the

other evidence of the appellant’s guilt that was presented at trial. The

evidence that the Appellant was in exclusive control of the car and the




                                       5
hat where the officer located the heroin would allow a rational trier of

fact to find that Appellant possessed the heroin.


                                 Prayer

   The State asks this Court to overrule the appellant’s points of

error and to affirm the trial court’s judgment.



                                     Respectfully submitted,

                                     Allison Palmer
                                     District Attorney




                                     _____________________
                                     Leland Lacy
                                     Assistant District Attorney
                                     State Bar No. 24057953




                                      6
                      Certificate of Compliance
   Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby

certify, based upon the computer program used to generate this brief,

that this brief contains 667 words, excluding words contained in those

parts of the brief that Rule 9.4(i) exempts from inclusion in the word

count. I further certify that this brief is printed in a conventional, 14-

point typeface.




                                    _____________________
                                    Leland Lacy

                         Certificate of Service
   I hereby certify that, on the 22nd day of December, 2014, a true

and correct copy of this motion was served, by U.S. mail, electronic

mail, facsimile, or electronically through the electronic filing manager,

to the appellant’s attorney, Thomas W. Watson, Attorney at Law,

2441 S. 1st St, Abilene, TX 79605, tom@mehaffeyandwatson.com.




                                    _____________________
                                    Leland Lacy

                                      7
