                                                                          ACCEPTED
                                                                     03-14-00473-CR
                                                                            3737665
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                1/12/2015 4:00:40 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
  ____________________________________________
                                         1/12/2015 4:00:40 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
  _____________________________________________

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
                   Identity of Judge, Parties, and Counsel

Honorable Martha J. Trudo, 264th District Court, P.O. Box 324, Belton, Texas
76513; Trial Judge

Michael Waldman, Assistant District Attorney, Bell County, Texas, P.O. Box 540,
Belton, Texas 76513; State’s Trial Counsel

Terry E. Clark, Assistant District Attorney, Bell County, Texas, P.O. Box 540,
Belton, Texas 76513; State’s Trial Counsel

Jeffrey D. Parker, P.O. Box 660, Belton, Texas 76513-0660, Appellant’s Trial
Counsel

Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513,
State’s Appellate Counsel

John A. Kuchera, 210 N. 6th St., Waco, Texas, 76701, Appellant’s Appellate
Counsel

Shawn Michael Walker, Appellant, TDC #1944889, Estelle Unit, 264 FM 3478,
Huntsville, TX 77320-3320




                                                                              ii
                                  Table of Contents
                                                                          Page
Identity of Parties and Counsel                                           ii

Table of Contents                                                         iii-iv

Index of Authorities                                                      v-ix

Issues Presented                                                          x

Statement of the Case                                                     2

Statement of Facts                                                        2-3

Summary of the Argument                                                   3

Argument and Authorities

 1. The evidence was not sufficient to sustain Walker’s possession with   4-28
   intent conviction as a principal.
   (a) Standard of review                                                 4-5
   (b) Indictment                                                         5
   (c) Possession generally                                               5-6
   (d) Possession is “location specific”                                  6-7
   (e) Constructive possession when others are present                    7-9
   (f) Constructive possession in a vehicle when others are present       9-12
   (g) Intent to distribute                                               12-15
   (h) What constitutes a rational, reasonable inference?                 15-17
   (j) Analysis                                                           17-
       (i) driver’s side baggie                                           17-18
       (ii) Walker’s pocket baggie                                        18
       (iii) Pierce’s vaginal methamphetamine                             18-19
       (iv) bag behind the driver’s seat                                  19-20
       (v) Frisbee methamphetamine                                        20-21
       (vi) pink methamphetamine                                          21-22
       (vii) syringes                                                     22
       (viii) MSM                                                         22
       (ix) legitimate inferences                                         22-28


                                                                                   iii
 2. The evidence was not sufficient to sustain Walker’s possession with   29-34
   intent conviction under a party theory.
   (a) Evidentiary requirements for conviction as a party                 29-30
   (b) Aiding and abetting under federal law                              30-31
   (c) Pierce as a principal                                              31
   (d) Walker’s conduct before the arrest                                 31-32
   (e) Walker’s conduct at the time of the arrest                         32-33
   (f) Walker’s conduct after the arrest                                  33-34
   (g) Summary                                                            34


Prayer for Relief                                                         34-35

Certificate of Service                                                    36

Certificate of Compliance                                                 37




                                                                               iv
                                              Table of Authorities

                                                                                                                  Page(s)

Cases
Adames v. State,
  353 S.W.3d 854 (Tex. Crim. App. 2011) ........................................................... 15

Adams v. State,
  No. 05-92-02268-CR, 1994 WL 370117 (Tex.App.—Dallas July
  14, 1994, no pet.) (unpublished) ......................................................................... 32
Ahrens v. State,
  43 S.W.3d 630 (Tex.App.—Houston [1st Dist.] 2001, pet. ref’d) ..................... 34

Aldridge v. State,
   482 S.W.2d 171 (Tex. Crim. App. 1972) ............................................................. 9

Allen v. State,
   249 S.W.3d 680 (Tex.App.—Austin 2013, no pet.) .................6, 9, 25, 26, 27, 28

Bethancourt-Rosales v. State,
   50 S.W.3d 650 (Tex.App.—Waco 2001, pet. ref’d) ....................................10, 12
Blackman v. State,
   350 S.W.3d 588 (Tex. Crim. App. 2011) ........................................................... 12

Brewer v. State, 126 S.W.3d 295, 297 Tex.App.—Beaumont 2004,
   pet. ref’d)............................................................................................................. 15
Brooks v. State,
   323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................................. 4

Brown v. State,
   911 S.W.2d 744 (Tex. Crim. App. 1995) ............................................................. 7

Burdine v. State,
  719 S.W.2d 309 (Tex. Crim. App. 1986) ........................................................... 29

De La Garza v. State,
  898 S.W.2d 376 (Tex.App. – San Antonio 1995, no pet.) ................................. 13


                                                                                                                            v
Evans v. State,
  202 S.W.3d 158 (Tex. Crim. App. 2006) ......................................................... 8, 9
Harvey v. State,
  487 S.W.2d 75 (Tex. Crim. App. 1972) ............................................................... 9

Hernandez v. State,
  819 S.W.2d 806 (Tex. Crim. App. 1991) ........................................................... 29

Herrera v. State,
  No. 07-09-0071-CR, 2009 WL 2618301 (Tex. App.—Amarillo
  Aug. 26, 2009, no pet.) ....................................................................................... 13

Hooper v. State,
  214 S.W.3d 9 (Tex. Crim. App. 2007) .........................................................16, 17
Jackson v. Virginia,
   443 U.S. 307 (1979) ........................................................................................ 4, 15
Jenkins v. State,
   76 S.W.3d 709 (Tex.App.—Corpus Christi 2002, pet. ref’d) .............................. 9
Lane v. State,
  151 S.W.3d 188 (Tex. Crim. App. 2004) ............................................................. 4

Marable v. State,
  85 S.W.3d 287 (Tex. Crim. App. 2002) ............................................................. 30

Mares v. State,
  801 S.W.2d 121 (Tex.App. – San Antonio 1990, no pet.) ................................... 9
Martin v. State,
  753 S.W.2d 384 (Tex. Crim. App. 1988) ............................................................. 5

Moreno v. State,
  821 S.W.2d 344 (Tex.App.-Waco 1991, pet. ref'd) .......................................... 6, 7

Oaks v. State,
  642 S.W.2d 174 (Tex. Crim. App. 1982) (en banc) ............................................. 9

Owen v. State,
  No. 05-91-00127-CR, 1992 WL 166598 (Tex. App.—Dallas July
  15, 1992, pet. ref'd) (unpublished) ...................................................................... 13

                                                                                                                   vi
Paulman v. State,
  No. 2-07-291-CR, 2008 WL 4531707 (Tex.App.—Fort Worth Oct.
  9, 2008, pet. dism’d) (unpublished) ...................................................................... 7

Pesina v. State,
   949 S.W.2d 374 (Tex.App.—San Antonio 1997, no pet.) ................................. 29

Poindexter v. State,
   153 S.W.3d 402 (Tex. Crim. App. 2005) ......................................................... 5, 8
Powell v. State,
  502 S.W.2d 705 (Tex. Crim. App. 1973) ............................................................. 6

Ransom v. State,
  920 S.W.2d 288 (Tex. Crim. App. 1996) ........................................................... 30
Richardson v. State,
   879 S.W.2d 874 (Tex. Crim. App.1992) ............................................................ 31
Roberson v. State,
  80 S.W.3d 730 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) ..................... 10
Santiestan-Pileta v. State,
   421 S.W.3d 9 (Tex.App.—Waco 2013, pet. ref’d) .............................................. 9

Taylor v. State,
   684 S.W.2d 682 (Tex. Crim. App. 1984) ........................................................... 15

Thornton v. State,
  425 S.W.3d 289 (Tex. Crim. App. 2014) ....................................................... 4, 34
United States v. Campos,
  306 F.3d 577 (8th Cir. 2002) .............................................................................. 13

United States v. Cooper,
  No. 8:13-cr-187, 2013 WL 5741786 (M.D. Fla. Oct. 22, 2013)
  (unpublished) ...................................................................................................... 28

United States v. Coppin,
  1 Fed. Appx. 283 (6th Cir. 2001) (unpublished) ................................................ 28

United States v. Crain,
  33 F.3d 480 (5th Cir. 1994) ................................................................................ 23

                                                                                                                      vii
United States v. Delagarza-Villarreal,
  141 F.3d 113 (5th Cir. 1997) .............................................................................. 30
United States v. Ferg,
  504 F.2d 914 (5th Cir. 1974) .............................................................................. 10

United States v. Gordon,
  700 F.2d 215 (5th Cir. 1983) .............................................................................. 11

United States v. Hernandez-Beltran,
  867 F.2d 224 (5th Cir. 1989) ................................................................................ 7

United States v. Jones,
  518 F.2d 64 (9th Cir. 1975) ................................................................................ 28

United States v. Littrell,
  574 F.2d 828 (5th Cir. 1978) .............................................................................. 11

United States v. Lombardi,
  138 F.3d 559 (5th Cir. 1998) .............................................................................. 30

United States v. Longoria,
  569 F.2d 422 (5th Cir. 1978) ........................................................................32, 33
United States v. Meneses–Davila,
  580 F.2d 888 (5th Cir.1978) ............................................................................... 12
United States v. Meshack,
  225 F.3d 556 (5th Cir. 2000), amended on reh'g in part, 244 F.3d
  367 (5th Cir. 2001).............................................................................................. 27
United States v. Moreno-Hinojosa,
  804 F.2d 845 (5th Cir. 1986) ........................................................................10, 11

United States v. Morrison,
  220 Fed. Appx. 389 (6th Cir. 2007) (unpublished) ......................................31, 32

United States v. Natel,
  812 F.2d 937 (5th Cir. 1987) .............................................................................. 30

United States v. Ramos,
  476 F.2d 624 (9th Cir. 1973) .............................................................................. 12


                                                                                                                  viii
United States v. Savinoch,
  845 F.2d 834 (9th Cir. 1988) .............................................................................. 32
United States v. Sliwo,
  620 F.3d 630 (6th Cir. 2010) .............................................................................. 34

United States v. Smith,
  20 Fed. Appx. 258 (6th Cir. 2001) (unpublished) ..................................13, 14, 15

United States v. Stanley,
  24 F.3d 1314 (11th Cir. 1994) ............................................................................ 12

United States v. Zule,
  581 F.2d 1218 (5th Cir. 1978) ............................................................................ 11

Urbano v. State,
  837 S.W.2d 114 (Tex. Crim. App. 1992) .....................................................15, 16

Wooden v. State,
  101 S.W.3d 542 (Tex.App. – Fort Worth 2003, no pet,).................................... 29

Statutes
Tex. Health & Safety Code Ann. § 481.002 (38) ...................................................... 5
Tex. Penal Code Ann. § 7.02 (a)(2) ......................................................................... 29

Other Authorities
Black's Law Dictionary (6th ed. 1990) ................................................................... 15

New Webster’s Dictionary of the English Language (1971).................................. 15




                                                                                                              ix
                                    Issues Presented

1. Whether the evidence was not sufficient to sustain Walker’s possession with
intent conviction as a principal.



2. Whether the evidence was not sufficient to sustain Walker’s possession with
intent conviction under a party theory.




                                                                             x
                                     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
    ____________________________________________________________

         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 brief pursuant to the provisions of the Texas

Rules of Appellate Procedure.




                                                                                  1
                               Statement of the Case

      On November 13, 2013, Shawn Michael Walker (“Walker”) was charged by

indictment with the first degree felony offense of possession of methamphetamine

with an intent to distribute in an amount of four grams or more but less than 200

grams. CR 4.

      On July 14, 2014, Walker entered a not guilty plea and proceeded to trial

before a jury. 4 RR 1, 6-7. On July 15, 2014, the jury found him guilty of the charged

offense and assessed his punishment at 55 years in prison and no fine. 5 RR 58-59;

6 RR 105-06; CR 36, 40. The trial court rendered judgment in accordance with the

jury’s verdict. 6 RR 106; CR 47-49.

      The trial court signed Walker’s certification of his right to appeal. CR 41.

Walker timely filed his notice of appeal on July 28, 2014. CR 52. His trial counsel

was allowed to withdraw and undersigned counsel was appointed to handle the

appeal. CR 57-61, 64.




                                Statement of Facts

      On October 27, 2013, at 5:11 p.m., Killeen police officers were called to 309

Root Avenue (an area noted for high drug activity) regarding a subject armed with a

gun. 4 RR 18-21, 44-45, 66. They found a white van with a license plate number

                                                                                    2
that matched the one given by dispatch. 4 RR 21, 34; State Ex. 1. Tiffany Diane

Pierce (“Pierce”) was is in the driver’s seat. 4 RR 23. Walker was seated in the

front passenger seat. 4 RR 24; State Ex. 2. Other occupants of the van were Joseph

E. Copeland and Caroline R. Evans. 4 RR 27, 47. The other facts necessary for

this Court’s consideration are set forth under the respective issues.




                            Summary of the Argument

       First issue: The evidence proved only that Walker either possessed or

constructively possessed methamphetamine in personal use amounts. Therefore, the

evidence was insufficient to support his conviction for possession with intent to

distribute.

       Second issue: Assuming Tiffany Pierce did possess methamphetamine in the

alleged amount with an intent to distribute, nothing in the record establishes that

Walker in any way assisted or encouraged her in her commission of the offense.

Thus, the evidence was also insufficient to sustain Walker’s conviction under a party

theory.




                                                                                   3
                            Argument and Authorities
1. The evidence was not sufficient to sustain Walker’s possession with intent
conviction as a principal.


      (a) Standard of review

      Sufficiency of the evidence under the federal due process standard is now

reviewed under the legal sufficiency standard set forth in Jackson v. Virginia, 443

U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

This standard is more rigorous than the previous Texas legal sufficiency review. Id.

Under this standard, evidence is insufficient to support a conviction if, considering

all the record evidence, both State and defense, in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 319.

Any inference made by the jury must be supported by sufficient evidence. Thornton

v. State, 425 S.W.3d 289, 304 (Tex. Crim. App. 2014). Beyond a reasonable doubt

means proof to a high degree of certainty. Lane v. State, 151 S.W.3d 188, 192 (Tex.

Crim. App. 2004). Viewed in the light most favorable to the verdict, the evidence is

insufficient when either (1) the record contains no evidence, or merely a “modicum”

of evidence, probative of an element of the offense; or (2) the evidence conclusively

establishes reasonable doubt. Jackson, 443 U.S. at 314, 319 n. 11, 320. This review

focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18

                                                                                   4
(“Sufficient evidence is ‘such evidence, in character, weight, or amount, as will

legally justify the judicial or official action demanded.’”) (Cochran, J., concurring).




        (b) Indictment

        Walker’s indictment reads in relevant part as follows:

        Shawn Michael Walker, . . . Defendant, on or about the 27th day of
        October . . . 2013 . . . did then and there, individually and as a party
        with Tiffany Diane Pierce, intentionally and knowingly possess with
        intent to deliver a controlled substance, to-wit: Methamphetamine, in
        an amount by aggregate weight, including adulterants and dilutants, of
        four grams or more but less than 200 grams.
CR 4.




        (c) Possession generally

        In cases involving unlawful possession of a controlled substance, the State

must prove that the accused intentionally or knowingly exercised actual care,

custody, control, or management over the substance and that the accused knew the

matter possessed was contraband. Tex. Health & Safety Code Ann. § 481.002 (38)

(West 2010); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005);

Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). The adverbs

“intentionally and knowingly” apply to the conduct itself – not to the result of the


                                                                                      5
conduct or the circumstances surrounding the conduct. Allen v. State, 249 S.W.3d

680, 690 (Tex.App.—Austin 2013, no pet.). Possession need not be exclusive and

evidence which shows that an accused jointly possessed the contraband with another

is sufficient. Id. Whether the theory of prosecution is sole or joint possession, the

evidence must link the accused to the contraband in such a manner and to such an

extent that a reasonable inference may arise that the accused knew of the

contraband’s existence and that he had possession of it. Id. Additionally, to establish

unlawful possession, the state move prove that the defendant knew that the object

possessed was a controlled substance. Powell v. State, 502 S.W.2d 705, 708 (Tex.

Crim. App. 1973); Allen, 249 S.W.3d at 690.




      (d) Possession is “location specific”

      When the State puts on evidence of the presence of a controlled substance(s)

in multiple locations, the circumstances present in each specific location must be

analyzed separately. In Moreno v. State, 821 S.W.2d 344, 352 (Tex.App.-Waco

1991, pet. ref'd), the defendant argued the evidence was insufficient to affirmatively

link him to the 745 grams of cocaine found under the hood of the vehicle. The

defendant was a passenger in the vehicle, and upon his arrest and booking, peace

officers recovered eleven grams of cocaine in the defendant's wallet. Id. However,


                                                                                     6
the Waco Court found the evidence insufficient to affirmatively link the defendant

to the cocaine found under the vehicle's hood because the defendant: (1) was not

connected with the ownership or control of the car; (2) made no furtive gestures; (3)

did not attempt to escape; (4) made no incriminating statements; (5) was not under

the influence of an illegal drug; and, (6) the odor of an illegal drug was not present

in or around the vehicle. Id.; see Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.

App. 1995) (“[E]ach defendant must . . . be affirmatively linked with the drugs he

allegedly possessed[.]”); United States v. Hernandez-Beltran, 867 F.2d 224, 226-27

(5th Cir. 1989) (evidence sufficient to support two counts of possession with intent

to distribute but not third count); Paulman v. State, No. 2-07-291-CR, 2008 WL

4531707, at *3 (Tex.App.—Fort Worth Oct. 9, 2008, pet. dism’d) (unpublished)

(court engaged in analysis to determine whether appellant could be linked to all or

part of methamphetamine found in house).




      (e) Constructive possession when others are present

      When an accused is not in exclusive possession of the place where the

contraband is found, it cannot be concluded that the accused had knowledge of or

control over the contraband unless there are additional independent facts and

circumstances linking the accused to the knowing possession of the contraband.


                                                                                    7
Poindexter, 153 S.W.3d at 406. “[T]he legal issue is whether there was evidence of

circumstances, in addition to mere presence, that would adequately justify the

conclusion that the defendant knowingly possessed the substance.” Evans v. State,

202 S.W.3d 158, 162 n. 9 (Tex. Crim. App. 2006). In Evans the Court of Criminal

Appeals chose to no longer refer to “affirmative links” as if that term denotes some

independent test of legal sufficiency: “Henceforth, we will use only ‘link’ so that it

is clear that evidence of drug possession is judged by the same standard as all other

evidence.” Id. The Court did include in a footnote the following “non-exclusive list

of possible ‘affirmative links’ that Texas courts have recognized as sufficient, either

singly or in combination, to establish a person’s possession of contraband”:


      (1) the defendant's presence when a search is conducted; (2) whether
      the contraband was in plain view; (3) the defendant's proximity to and
      the accessibility of the narcotic; (4) whether the defendant was under
      the influence of narcotics when arrested; (5) whether the defendant
      possessed other contraband or narcotics when arrested; (6) whether the
      defendant made incriminating statements when arrested; (7) whether
      the defendant attempted to flee; (8) whether the defendant made furtive
      gestures; (9) whether there was an odor of contraband; (10) whether
      other contraband or drug paraphernalia were present; (11) whether the
      defendant owned or had the right to possess the place where the drugs
      were found; (12) whether the place where the drugs were found was
      enclosed; (13) whether the defendant was found with a large amount of
      cash; and (14) whether the conduct of the defendant indicated a
      consciousness of guilt.




                                                                                     8
Evans, 202 S.W.3d at 162 n. 12.1

       However, “[m]ere presence in the vicinity of the contraband or where

contraband is being used or possessed by others does not, by itself, support a finding

that a person is a joint possessor or a party to the offense.” Allen, 249 S.W.3d at

691; Evans, 202 S.W.3d at 162; Harvey v. State, 487 S.W.2d 75, 77 (Tex. Crim. App.

1972). In fact, mere presence does not make an accused a party to joint possession

even if the accused knows of the existence of the contraband and has knowledge of

an offense. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982); Allen, 249

S.W.3d at 692; Mares v. State, 801 S.W.2d 121, 126 (Tex.App. – San Antonio 1990,

no pet.) (“possession means more than being where the action is, it involves the

exercise of dominion and control over the thing allegedly possessed”).




       (f) Constructive possession in a vehicle when others are present

       In order to prove possession when multiple individuals are found in the same

vehicle as contraband, there must be evidence of some nexus between the accused


1
  Other indicators of possession courts have found include: whether the accused's fingerprints
were found on incriminating items associated with the controlled substance, Oaks v. State, 642
S.W.2d 174, 178 (Tex. Crim. App. 1982) (en banc); “Implausible story” link, Santiestan-Pileta v.
State, 421 S.W.3d 9, 14 (Tex.App.—Waco 2013, pet. ref’d); Nervous, unsettled demeanor. Jenkins
v. State, 76 S.W.3d 709, 713 (Tex.App.—Corpus Christi 2002, pet. ref’d); and whether the
defendant was driving the car where the drugs were located, Aldridge v. State, 482 S.W.2d 171,
174 (Tex. Crim. App. 1972).

                                                                                              9
and the prohibited substance besides physical proximity. United States v. Ferg, 504

F.2d 914, 917 (5th Cir. 1974).2 In Ferg, the Fifth Circuit held the evidence of

possession to be insufficient to sustain the conviction:

       The facts of this case illustrate the logic of this ‘mere presence’ rule.
       The government presents only two pieces of circumstantial evidence in
       an attempt to link Ferg with the seized marijuana. Ferg was traveling
       with Shaw, the person who admitted having purchased the marijuana,
       and Ferg was a passenger in the car in which the marijuana was
       concealed. Beyond the admission by Ferg that he was a traveling
       companion of one guilty of illegal possession of marijuana, the
       government failed to establish that Ferg in any way violated [the federal
       drug statute]. The government's evidence failed to prove that Ferg had
       ever maintained possession of the contraband or had any intention of
       participating in the distribution of it. . . . , his companion, in no way
       implicated Ferg in the statement he made to the federal agents. There
       was no evidence to show that Ferg and Shaw had traveled together for
       a sustained period of time after the marijuana was admittedly obtained
       by Shaw. Moreover, the government did not establish that Ferg had
       rented the car or even shared the cost of rental. It was not even shown
       or claimed that Ferg had ever driven the car or that he could drive an
       automobile. We do not accept the government's apparent invitation to
       infer guilt by association.
Id. at 917; See Roberson v. State, 80 S.W.3d 730, 741 (Tex.App.—Houston [1st

Dist.] 2002, pet. ref’d) (no evidence beyond mere presence of three individuals in

car together suggesting that they were working as a unit for any purpose); United

States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) (“Even if [the



2
 Texas courts often look to federal case law (particularly the Fifth Circuit) for guidance regarding
whether possession has been sufficiently proven. See e.g. Bethancourt-Rosales v. State, 50 S.W.3d
650, 654 (Tex.App.—Waco 2001, pet. ref’d) (“The Fifth Circuit requires that evidence of control
be supplemented by other circumstantial evidence ‘that is suspicious in nature or demonstrates
guilty knowledge.’”).
                                                                                                 10
passenger] knew that [the driver] was making an illegal marihuana run, this fact

would not be sufficient evidence to establish his possession without an additional

showing that he was riding in the truck to participate in the possession and

distribution. The government did not make this additional showing even

circumstantially beyond a reasonable doubt”); United States v. Gordon, 700 F.2d

215, 217 (5th Cir. 1983) (“We are unable to find any evidence, beyond McMahon's

‘mere presence’ in the truck, to indicate that he had maintained control over the

contraband, had any intention of participating in the distribution of the contraband,

or had any knowledge of it whatsoever. To affirm defendant's conviction would be

to countenance a conviction based on guilt by association.”); United States v. Zule,

581 F.2d 1218, 1221 (5th Cir. 1978) (constructive possession not shown where there

was no evidence that defendant owned or had control of sports car from which

another person removed contraband or that defendant handled the contraband at any

time); United States v. Littrell, 574 F.2d 828, 835 (5th Cir. 1978) (constructive

possession not shown where there was no evidence that defendant owned the car or

was aware of cocaine presence in glove compartment or that he ever handled the

cocaine at any time); United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir.

1986) (Even if defendant passenger knew that driver was making an illegal

marihuana run, this fact would not be sufficient evidence to establish his possession

without an additional showing that he was riding in the truck to participate in the


                                                                                  11
possession and distribution.); United States v. Ramos, 476 F.2d 624, 625 (9th Cir.

1973) (It is “well established that a passenger may not be convicted [of possession]

unless there is evidence connecting him with the contraband, other than his presence

in the vehicle.”); United States v. Stanley, 24 F.3d 1314, 1320-21 (11th Cir. 1994)

(possession with intent to distribute conviction reversed because of lack of evidence

that defendant passenger in vehicle had any knowledge of crack cocaine hidden

under the dashboard); Cf. Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011) (front seat passenger defendant had traveled hundreds of miles with two other

men, after which time the driver was given a box, later found behind driver’s seat of

van and which contained three kilograms of cocaine); Bethancourt-Rosales v. State,

50 S.W.3d 650, 654 (Tex.App.—Waco 2001, pet. ref’d) (defendant had been in

possession of vehicle for five days wherein 9.83 kilograms of cocaine was found in

a hidden compartment welded to the undercarriage of the vehicle).




      (g) Intent to distribute

      An intent to distribute is usually proven through circumstantial evidence. “As

a general rule, intent to distribute can be inferred from the possession of a large

amount of controlled substance.” Bethancourt-Rosales v. State, 50 S.W.3d 650, 653

(Tex. App.—Waco 2001, pet. ref'd) (citing United States v. Meneses–Davila, 580



                                                                                  12
F.2d 888, 897 (5th Cir.1978)).3 Again however, an intent to distribute based on the

presence of a large quantity of drugs cannot be inferred absent a showing of knowing

possession by the accused. In United States v. Smith, 20 Fed. Appx. 258 (6th Cir.

2001) (unpublished), wherein appellant was convicted of possession with intent to

distribute (and aiding and abetting) methamphetamine, amphetamine and cocaine,

the relevant facts were as follows. Appellant was a passenger in a rented vehicle on

which a traffic stop was effected. He appeared to be “stoned” and “had a white

mucus substance around his lips” the vehicle had trash strewn about and there was a

smell of body odor “as if the men had not bathed in a couple of days.” Id. at 261.

The vehicle appeared to have been rented by the driver’s wife. Id. After a drug dog

alerted to a black canvas bag behind the driver’s seat, a search showed it to contain

large quantities of illegal drugs. Id. at 261-62. A further search revealed a loaded

pistol “next to the passenger seat between the seat and the console,” a loaded

magazine in the glove compartment, hotel and food receipts from the previous two

days, a set of digital scales and wrapping material used to wrap the drugs. Id. at 262.



3
  Other factors from which an intent to distribute can be inferred include: The presence of large
amounts of cash or the fact that the controlled substance is individually wrapped in small packages
can be evidence of an intent to distribute, Herrera v. State, No. 07-09-0071-CR, 2009 WL
2618301, at *3-4 (Tex. App.—Amarillo Aug. 26, 2009, no pet.); the presence of a firearm. De La
Garza v. State, 898 S.W.2d 376, 379 (Tex.App. – San Antonio 1995, no pet.); United States v.
Campos, 306 F.3d 577, 580 (8th Cir. 2002) (“A gun is generally considered a tool of the trade for
drug dealers.”); and the presence of scales. Owen v. State, No. 05-91-00127-CR, 1992 WL 166598,
at *4 (Tex. App.—Dallas July 15, 1992, pet. ref'd) (unpublished).

                                                                                                13
Last but not least, a “shooter pipe used to ingest narcotics” was found in appellant’s

front pants pocket. Id. The Sixth Circuit held that the evidence was insufficient to

support the possession with intent to distribute charges:


      The government presented no direct evidence of actual possession by
      Smith. In fact, there is no direct evidence that he knew of the drugs or
      exercised control over the drugs or the vehicle, or that he was anything
      but a passenger in the vehicle. Thus, the issue before us is whether the
      government presented sufficient circumstantial evidence to establish
      that Smith constructively possessed the methamphetamine and the
      amphetamine with the intent to distribute the drugs. . . . With respect to
      these counts, the evidence presented at trial established that 5854.4
      grams of amphetamine and 436.9 grams of methamphetamine were
      discovered in a bag located on the floor behind the driver's seat. DEA
      Agent Ramsey testified that these quantities were consistent with drug
      distribution. Thus, the jury was entitled to infer an intent to distribute
      from these quantities. While the evidence may have been sufficient to
      establish constructive possession, if not actual possession, of these
      drugs by the possessor and driver of the vehicle, the problem with the
      convictions of Smith, a passenger, is the lack of evidence showing any
      possession of these drugs by him. The government presented no
      evidence that Smith exercised any control over or had access to these
      drugs. The drugs were found in a bag, covered by a shirt, on the floor
      behind the driver's seat. Additionally, the government presented no
      evidence that Smith exercised any type of control over the vehicle or
      the bag in which the drugs were located. The government's only
      evidence was that Smith was a passenger in a vehicle which contained
      drugs likely intended for distribution. . . . The government also failed
      to present any evidence to support Smith's conviction on an aiding and
      abetting theory. Even if Smith was aware of the drugs or the driver's
      involvement in illegal activity, that awareness would be insufficient to
      convict him of aiding and abetting possession of drugs with intent to
      distribute.


                                                                                   14
Id. at 266-67.



      (h) What constitutes a rational, reasonable inference?

      An appellate court’s duty in addressing a sufficiency of the evidence

complaint under the Jackson standard is to ensure the rationality of the factfinder.

Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992); Adames v. State, 353

S.W.3d 854, 860 (Tex. Crim. App. 2011) (“On review, this Court determines

whether the necessary inferences made by the trier of fact are reasonable, based upon

the cumulative force of all of the evidence.”). Circumstantial evidence is “direct

proof of a secondary fact which, by logical inference, demonstrates the ultimate fact

to be proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984). “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).

      In Urbano the appellant argued that his capital murder conviction for


                                                                                   15
committing murder for remuneration or the promise of remuneration was not

supported by sufficient evidence. Urbano, 837 S.W.2d at 115. The Court of

Criminal Appeals agreed:

      [T]he evidence and reasonable inferences therefrom established that at
      the time of the offense appellant was a member of a prison gang; that
      the gang had definite rules regarding murder, promotion in rank, and
      the consequences of promotion in rank; i.e., increased access to money,
      drugs, and goods; that appellant murdered on behalf of the gang; and
      that after the murder he rose in rank. There was no direct evidence,
      however, that at the time of the killing, appellant was aware of the gang
      rules in question and that he acted with those rules in mind. Nor was
      there circumstantial evidence from which the jurors could conclude
      beyond a reasonable doubt that appellant must have known of the
      relevant gang rules and committed the murder to receive a benefit from
      the operation of the rules. Certainly, the evidence raises a strong
      suspicion that appellant acted with the gang rules in mind, that is, that
      he murdered with an expectation of tangible benefit. But appellant’s
      intent or state of mind with respect to an expectation of benefit was not
      proven to a high degree of certainty. Rational jurors could not
      conclude beyond a reasonable doubt simply from appellant’s
      membership in the gang that he was aware of all the gang’s rules.
      (emphasis added)

Id. at 116-17.

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

was convicted of aggravated assault of a public servant, the Court of Criminal

Appeals addressed, inter alia, what is and what is not a reasonable inference. Id. at

15-17. The following language is instructive:

      Under the Jackson [v. Virginia] test, . . . juries are permitted to draw
      multiple reasonable inferences from the evidence (direct or
      circumstantial), but they are not permitted to draw conclusions based
      on speculation. Without concrete examples, it can be difficult to
                                                                                  16
      differentiate between inferences and speculation, and between drawing
      multiple reasonable inferences versus drawing a series of factually
      unsupported speculations. This hypothetical might help clarify the
      difference. A woman is seen standing in an office holding a smoking
      gun. There is a body with a gunshot wound on the floor near her. Based
      on these two facts, it is reasonable to infer that the woman shot the gun
      (she is holding the gun, and it is still smoking). Is it also reasonable to
      infer that she shot the person on the floor? To make that determination,
      other factors must be taken into consideration. If she is the only person
      in the room with a smoking gun, then it is reasonable to infer that she
      shot the person on the floor. But, if there are other people with smoking
      guns in the room, absent other evidence of her guilt, it is not reasonable
      to infer that she was the shooter. No rational juror should find beyond
      a reasonable doubt that she was the shooter, rather than any of the other
      people with smoking guns. To do so would require impermissible
      speculation. But, what if there is also evidence that the other guns in the
      room are toy guns and cannot shoot bullets? Then, it would be
      reasonable to infer that no one with a toy gun was the shooter. It would
      also be reasonable to infer that the woman holding the smoking gun
      was the shooter. This would require multiple inferences based upon the
      same set of facts, but they are reasonable inferences when looking at
      the evidence. We first have to infer that she shot the gun. This is a
      reasonable inference because she is holding the gun, and it is still
      smoking. Next, we have to infer that she shot the person on the floor.
      This inference is based in part on the original inference that she shot the
      gun, but is also a reasonable inference drawn from the circumstances.


Id. at 15-16.



      (j) Analysis

                               (i) driver’s side baggie

      The first article containing methamphetamine was a small Ziploc baggie box

“right next to the driver’s side on the floor board,” “on the front driver’s door,”
                                                                                    17
between the seat and the door, “right inside the door jamb.” 4 RR 28, 66-67, 72-73;

State Ex. 3, 18. This article was in plain view to the officer who found it because he

approached the vehicle from the driver’s side door. 4 RR 66. It would not have

been in plain view to someone seated in the front passenger seat. The net weight of

this methamphetamine was 2.16 grams. State Ex. 23; 4 RR 88, 101. The State’s

expert witness, Detective Mallow, testified that this was a user amount, not a

distribution amount. 4 RR 95-96.

                             (ii) Walker’s pocket baggie

      A search of Walker’s person at the Killeen City Jail revealed a small baggie

of methamphetamine in Walker’s front left change pocket. 4 RR 34, 99; State Ex.

17. The net weight of this methamphetamine was 0.28 grams. 4 RR 87, 99; State

Ex. 23. Detective Mallow, testified that this was a user amount, not a distribution

amount. 4 RR 95-96.

                       (iii) Pierce’s vaginal methamphetamine

      A strip search of Pierce at the jail yielded up two pair of tweezers and also

revealed a string hanging out of her vaginal area. 4 RR 53-54. When Pierce refused

to pull out the string, she was taken to a hospital to have it removed; upon arrival at

the hospital, “there was a brown bag sitting next to her and several baggies of crystal-

like substance that she had pulled out of her vaginal area.” 4 RR 55-56. There was


                                                                                     18
no evidence at trial as the net weight of the substance in these baggies but nothing

in the record suggests that Walker was aware that Pierce was carrying

methamphetamine in her vagina.

                           (iv) bag behind the driver’s seat

      It should first be noted that the entire area from behind the front seats to the

rear of the van, was simply “full of stuff”; State Ex. 4, 7:

 State: How was this van? Was it neat and clean, relatively empty?
 Officer Lawson: No. It was completely full of stuff. Clothes, trash, a lot of stuff.
4 RR 49.

 Officer Van Valkenburg: [T]here was a lot of stuff in the vehicle. Appeared like
  somebody might have been living in the vehicle.”
4 RR 68.

 Officer Van Valkenburg “[T]here was a lot . . . of luggage in there.”
4 RR 71.

      Although the bag behind the driver’s seat was only found a few feet from the

front passenger seat, it was hidden under clothes inside a box:

 Officer Lawson: . . . After that I found a blue bag and inside the bag was a black
  box, inside the black box was a large gallon size Ziploc bag with a white crystal-
  like substance and razor inside.
 State: And where was this blue bag inside the van?
 Officer Lawson: It was directly behind the passenger seat of the vehicle.


                                                                                   19
 State: So it was in the second seat behind the front passenger and driver seat
  directly behind the passenger seat?
 Officer Lawson: Yes.
4 RR 49, 57-58; State Ex. 4.         This Ziploc bag contained 40.58 grams of

methamphetamine and a razor. 4 RR 59, 88; State Ex. 5, 6, 20, 23 (gallon Ziploc

bag with crystal-like substance in it; razor inside 4 RR 59). When Officer Lawson

was asked “What else was in that blue bag?” she responded, “[i]t was female

clothing.” 4 RR 58-59.

                           (v) Frisbee methamphetamine

      In the rear area of the van, inside a laundry bag, methamphetamine was found

in a red Frisbee, wrapped in a pair of women’s pants:

 State: And then tell us about the rest of your search of the van. What other things
  did you find?
 Officer Lawson: Once I got to the rear of the vehicle and the trunk area where the
  back door as you saw in the picture, . . . there were several bags of laundry in it.
  So I started going through the laundry, and in one of the bags I found wrapped in
  a pair of pants another large quantity of crystal-like substance.
4 RR 51-52, 103.
 State: And what are we looking at in State’s Exhibit Number 12?
 Officer Lawson: That is out of the bag in the rear compartment. This is the second
  bag of crystal-like substance with the red Frisbee inside it.
4 RR 59-60; State Ex. 12, 13.
 State: What other items were found in the bag that had the red Frisbee and the
  crystal methamphetamine?



                                                                                   20
 Officer Lawson: There was female clothing, size small through large shirts, a pair
  of tan size three, . . . this was found inside the female jeans, size three, wrapped
  up in a baggie.
 State: And State Exhibit 14, what are we looking at there?
 Officer Lawson: That’s the same thing just closer up.
 State: That same red Frisbee with the crystal substance you believe to be
  methamphetamine?
 Officer Lawson: Yes.
4 RR 60; State Ex. 14. This methamphetamine weighed 56.92 grams. 4 RR 88, 103;

State Ex. 18, 23.

                             (vi) pink methamphetamine

      A second bag containing pink methamphetamine was found directly behind

the driver’s seat, 4 RR 73; State Ex. 7, 8, 9:

      Officer Van Valkenburg:

      “[W]hen I finished searching around the driver side door and the seat, .
      . . I . . . got in the back of the van, and I began searching that area, I
      found another bag of crystal methamphetamine. This one was the pink
      bag, and that was also a fairly small Ziploc bag which was directly
      behind the [driver’s] seat.”
4 RR 69-70. The bag and the substance inside were both pink in color. 4 RR 70.

This methamphetamine weighed 5.64 grams.         4 RR 88, 101-102, State Ex. 19, 23.

In a post-arrest interview, Walker indicated he was aware of this bag, adamantly

maintaining that it was not methamphetamine: “I know that’s not real.” State Ex.

24, 4:10:50.


                                                                                   21
                                    (vii) syringes

      In the rear of the van, inside a women’s cosmetic bag unused syringes were

found. 4 RR 61; State Ex. 16. Officer Lawson: “There was a multicolored . . .

bag that you put make and stuff in, and it had a whole bunch of syringes in it.” 4

RR 52. Used syringes were also found in the rear of the van:

      Officer Van Valkenburg: In the back seat, the very first seat, there was
      a bunch of syringes on the left side of the floor, on the right side of the
      floor, some of them still had liquid inside of them, which I assume was
      methamphetamine. And some of them were empty, had the caps off,
      and you could see that they had been used or because there was blood
      on the needle and also inside of them.
4 RR 71.

                                     (viii) MSM

      A search of the rear area of the van also turned up an “MSM container.” 4

RR 60-61; State Ex. 15. The Killeen detective in charge of the case testified that

MSM is a horse supplement (not a dangerous drug) commonly used to mix with

methamphetamine to increase the weight of the substance. 4 RR 97, 108.

                              (ix) legitimate inferences

      When officers arrived, Pierce was seated in the driver’s seat. 4 RR 23. Walker

was seated in the front passenger seat. 4 RR 24; State Ex. 2. Walker said the van

belonged to his girlfriend. 4 RR 25-26. Pierce was not his girlfriend. 4 RR 26. The


                                                                                     22
evidence suggested that someone had been living out of the van and that someone

was a woman – no men’s clothing was found in the van. It can be legitimately

inferred that Walker was not living out of the van. It can be arguably inferred that

Pierce was living out of the van. Thus it can also be legitimately inferred that Pierce

possessed the large quantities of methamphetamine found in “bag behind the driver’s

seat” and the “Frisbee methamphetamine” – not Walker. See United States v. Crain,

33 F.3d 480, 486 (5th Cir. 1994) (“We are especially reluctant to infer constructive

possession of contraband by one occupant when there is evidence in the record

explicitly linking the contraband to another occupant.”).

      Killeen police officers were dispatched to 309 Root at 5:11 p.m. based on an

anonymous phone call. 4 RR 18, 39, 44-45. The first officer to respond probably

arrived on scene within five minutes of the call. 4 RR 51. How long had the four

individuals been in the van together at the time officers arrived? Probably not very

long. Walker stated at the time of the arrest regarding the individuals in the back of

the van “that he had just picked them up to give them a ride,” and “[t]hey hadn’t

been in the van very long.” 5 RR 15. It can be legitimately inferred that Pierce and

Walker were in the van before the other individuals. But nothing in the record

provides a legitimate basis to infer that Walker had been in the van long enough to

know everything it contained. Furthermore, nothing in the record provides a

legitimate basis that he had been anywhere in the van except the front passenger seat.

                                                                                    23
The State, based on the weight of the “bag behind the driver’s seat” (40.58 grams)

and the “Frisbee methamphetamine” (56.92 grams), conceded that Pierce possessed

with the intent to distribute, but asked the jury to infer that this also proved Walker’s

intent to distribute:

       You have 100 grams of methamphetamine and a van that goes back to
       a friend of his, . . . did Mr. Walker, along with the driver of this vehicle,
       possess more than 4 grams with the intent to distribute it? I think the
       answer is clear.
5 RR 41.
       [Y]ou have 105.5 grams of methamphetamine in a van owned by this
       defendant’s wife that he’s sitting in the front passenger’s seat.
5 RR 53. But this was not a legitimate inference because this methamphetamine was

in bags and out of sight from the front passenger seat.

       The State asked the jury to infer that Walker knew about the “100 grams of

methamphetamine” in the van because he had 0.28 grams in his pocket:

       You should not have any doubt that there was more than 100 grams of
       methamphetamine in that van. And for sure, there’s no doubt he had at
       least a gram on him because he had it at the jail. The only evidence you
       have before you, that much narcotics, someone is selling it. Someone
       is distributing it.
5 RR 40. But as noted above in subsection (d), each location where a controlled

substance is found must be analyzed individually. It was not legitimate to infer that

because Walker possessed 0.28 grams in his pocket, he therefore possessed the

methamphetamine in “bag behind the driver’s seat” and the “Frisbee


                                                                                       24
methamphetamine.” See Allen, 249 S.W.3d at 701 (possession of “roach” carried

little weight or probative value in determining whether appellant had custody and

control of cocaine found in kitchen cabinets and on top of refrigerator).

      The State asked the jury to infer Walker’s intent to distribute based on the

presence of syringes: “You have syringes. Is that just possession . . . of less than a

gram?” 5 RR 41. Nothing in the record provides a legitimate basis to infer that

Walker could see the syringes from where he was seated or that he even knew they

were in the van (the same can be said for the MSM).

      The State asked the jury to infer Walker’s intent to distribute based on an

assumption that the two individuals in the back of the van were “getting high”:

      They pick up two people and the two people are getting high in the back
      of the van. And who do you think is providing them with what they
      need to get high? That’s distribution. That’s selling it.
5 RR 54. Given that the “hot to the touch” pipe was found in the rear of the van, it

may have been a legitimate inference that one or both of these folks was smoking

methamphetamine. But it is not legitimate to infer that this methamphetamine was

provided by Walker (or Pierce for that matter).             None of the bags of

methamphetamine found in the van were open. It is just as possible that one of the

individuals brought his (or her) own methamphetamine. See Allen, 249 S.W.3d at

703 (“A jury may not reasonably infer an ultimate fact from meager circumstantial

evidence, none more probable than another.”). And there was no evidence that
                                                                                   25
anybody in the van had been using the syringes to inject methamphetamine at the

time. 5 RR 21.

      The State asked the jury to infer Walker’s intent to distribute based on his

statement that the pink methamphetamine was not actually methamphetamine:

      “I know the pink stuff is not dope.” . . . How would he know that? How
      would he know the pink stuff is not dope? We’ll get back to that in a
      minute. . . . Now, back to my original question. . . . How do you know
      that? Unless you’ve touched it, taken it, weighed it, checked it,
      analyzed it, how would know that unless you were involved with it.
5 RR 38, 40. It was a legitimate inference that Walker was aware of the pink

substance that ultimately tested positive for methamphetamine. But as noted above

in subsection (c), to establish unlawful possession, the state must prove that the

defendant knew that the object possessed was a controlled substance.         Walker’s

statement was actually evidence that he did not know the pink substance was a

controlled substance. And just as important is the fact that the net weight of the pink

substance was 5.64 grams. 4 RR 88, State Ex. 23. The State’s expert testified that

this could have been a user quantity:

 State: When you say a large amount, what is it that’s a large amount as opposed
  to a small amount?
 Detective Mallow: A small amount was initially what was found. A small amount,
  showed me the bag, a larger amount, anything over four, ten grams, you know,
  more than user quantities.
4 RR 95-96. Thus, based on the weight alone, this evidence did not provide a

legitimate basis to infer an intent to distribute. See United States v. Meshack, 225
                                                                                    26
F.3d 556, 569 (5th Cir. 2000) (“We agree that the amount of cocaine involved could

be consistent with personal use and, accordingly, is insufficient in and of itself to

prove an intent to distribute.”), amended on reh'g in part, 244 F.3d 367 (5th Cir.

2001).

      It should also be noted that no firearm was found inside the van or on any of

the occupants. 4 RR 38-39, 48-49, 69. No scales were found. And no currency was

found in the van or on any of the occupants. 5 RR 21. The State tried to explain the

absence of cash thusly:

      Mr. Parker brought up a point that there was no money in the van.
      That’s true. There was no money. . . . Well, what if they re-upped?
      They just got hold of some and they’re looking to sell it and distribute
      it. They didn’t have money on them because they used it to buy the
      dope that’s in the van. And they’re parked at 309 Root Street, mobile
      drug van, people come in, get in the back, get high.
5 RR 55. The State’s theory was utter speculation. “Evidence in a knowing

possession of contraband case must amount to more than mere conjecture.” Allen,

249 S.W.3d at 704. “Proof that amounts to only a strong suspicion or mere

probability of guilty is insufficient to sustain a conviction.” Id.; United States v.

Coppin, 1 Fed. Appx. 283, 289 (6th Cir. 2001) (unpublished). (Conjecture and

surmise regarding what a defendant may have intended or known is insufficient to

support a conviction.).




                                                                                  27
      In sum, there is no evidence that Walker constructively possessed the

methamphetamine that Pierce was secreting in her vagina. See United States v.

Jones, 518 F.2d 64, 68 (9th Cir. 1975) (evidence insufficient as a matter of law to

establish beyond a reasonable doubt that defendant had knowledge of or control over

heroin in vagina of companion); United States v. Cooper, No. 8:13-cr-187, 2013 WL

5741786, at *3 (M.D. Fla. Oct. 22, 2013) (unpublished) (“vagina smuggling”

constituted actual possession). It could not be legitimately inferred that he was

aware of the 2.16 grams of methamphetamine found between the driver’s seat and

the driver’s side door – he couldn’t have seen it. The same can be said for the “bag

behind the driver’s seat”, the “Frisbee methamphetamine”, the syringes and the

MSM. The methamphetamine in Walker’s pocket and the pink methamphetamine

were only user quantities. Therefore, the evidence was insufficient to sustain

Walker’s conviction as a principal.




                                                                                  28
2. The evidence was not sufficient to sustain Walker’s possession with intent
conviction under a party theory.



      (a) Evidentiary requirements for conviction as a party

      The Penal Code lists four ways that a person can be criminally responsible for

the conduct of another. Tex. Penal Code Ann. § 7.02 (West 2011). The trial court’s

jury instructions in the instant case only mentioned one:

      A person is criminally responsible for an offense committed by the
      conduct of another if . . . acting with intent to promote or assist the
      commission of the offense, he solicits, encourages, directs, aids, or
      attempts to aid the other person to commit the offense.


CR 31; Tex. Penal Code Ann. § 7.02 (a)(2) (West 2011). A jury is not authorized

to convict a defendant as a party under a theory not set forth in the jury charge.

Wooden v. State, 101 S.W.3d 542, 548-49 (Tex.App. – Fort Worth 2003, no pet,).

To establish party liability, it must be proven that the accused harbored the specific

intent to promote or assist the commission of the charged offense. See Pesina v.

State, 949 S.W.2d 374, 382 (Tex.App.—San Antonio 1997, no pet.). The evidence

must show that, at the time of the offense, the parties were acting together, each

contributing to their common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex.

Crim. App. 1986) (en banc). Intent may be inferred from acts, words, and conduct

of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).

                                                                                   29
In determining whether a defendant participated as a party in the commission of an

offense, the jury may look to events that occurred before, during, or after the offense.

Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh’g).




      (b) Aiding and abetting under federal law

      Criminal liability as a party to an offense under Texas law is synonymous with

criminal liability as an aider and abettor under federal law. Marable v. State, 85

S.W.3d 287, 292 & n. 15 (Tex. Crim. App. 2002). Therefore federal aiding and

abetting cases can instructive regarding party liability as it relates to possession with

intent to distribute. A defendant may be convicted of aiding and abetting if he

associates with criminal activity, participates in it, and helps it succeed. United

States v. Delagarza-Villarreal, 141 F.3d 113, 140 (5th Cir. 1997). “[T]o aid and

abet, a defendant must share in the intent to commit the offense as well as play an

active role in its commission. . . . [H]e must have aided and abetted each material

element of the offense.” United States v. Lombardi, 138 F.3d 559, 561 (5th Cir.

1998). A conviction for aiding and abetting possession with intent to distribute

requires proof that the defendant aided and abetted in both the possession and

distribution of the drug. United States v. Natel, 812 F.2d 937, 941 (5th Cir. 1987);

see United States v. Delagarza-Villarreal, 141 F.3d 113, 140 (5th Cir. 1997)


                                                                                      30
(evidence supported finding that defendant aided and abetted intention to distribute

but not possession); United States v. Morrison, 220 Fed. Appx. 389, 395 (6th Cir.

2007) (unpublished) (While defendant’s comments established he knew something

illegal was involved with vehicle, they did not establish his knowledge of hidden

drugs).




      (c) Pierce as a principal

      For a defendant to be guilty as a party, there must first be evidence of the guilt

of another person as the primary actor. Richardson v. State, 879 S.W.2d 874, 882

(Tex. Crim. App.1992). The indictment alleges Pierce as the primary actor. CR 4.

As noted above (subsection 1(j)(ix)), it could legitimately be inferred that Pierce

possessed the large quantity “bag behind the driver’s seat”, the large quantity

“Frisbee methamphetamine.” Obviously it can be inferred that she possessed the

methamphetamine found in her vagina. Assuming arguendo that this was sufficient

to establish that Pierce possessed this methamphetamine with an intent to distribute

it, what is there that suggests that Walker assisted in this possession or intent?




      (d) Walker’s conduct before the arrest

      There is nothing in the record that establishes Walker’s conduct vis-à-vis
                                                                                     31
Pierce prior to the arrest other than they were together in a van. Nothing in the record

establishes that Walker had a possessory interest in the van sufficient to infer that he

had provided it to Pierce. Cf. Adams v. State, No. 05-92-02268-CR, 1994 WL

370117, at *2 (Tex.App.—Dallas July 14, 1994, no pet.) (unpublished) (fact that car

in which cocaine was delivered was registered in appellant’s name was evidence of

party liability). Nothing in the record suggests that he had anything to do with

placing the large quantities of methamphetamine in the van or that he ever drove the

van. Cf. United States v. Savinoch, 845 F.2d 834, 838 (9th Cir. 1988) (rational jury

could find that defendant aided and abetted her husband’s criminal venture by

accompanying him on the transaction, and sought to make it succeed by driving the

car and carrying the cocaine to the drop site).




      (e) Walker’s conduct at the time of the arrest

      Nothing that Walker said or did at the time of his arrest potentially implicated

him in Pierce’s possession of the large quantities of methamphetamine other than

the fact that it was present in the van. But that is not enough. See United States v.

Morrison, 220 Fed. Appx. 389, 396-98 (6th Cir. 2007) (unpublished) (no inference

of aiding and abetting intent to distribute based on existence of large quantity of

drugs absent a showing that the defendant had knowledge of the drugs). In United


                                                                                     32
States v. Longoria, 569 F.2d 422 (5th Cir. 1978), wherein appellant was convicted

of possession with intent to distribute marijuana, the facts were as follows.

Appellant caught a ride with Delgado, the owner of the vehicle, from Edinburg,

Texas to Austin, Texas, Delgado stating he “had business in Austin.” Id. at 424.

Shortly before reaching a border checkpoint, Delgado informed appellant that there

was marijuana in the car, handed her $300 and told her to “keep calm.” At the border

check point, one of the agents smelled marijuana, and after obtaining Delgado’s

consent to search the vehicle, found 176 pounds of marijuana inside suitcases located

in the trunk. An additional search “revealed trace of marijuana in appellant’s pocket

book; however, there is no contention that these traces were in any way related to

the marijuana found in the trunk.” Id. The Fifth Circuit reversed the conviction:

      [T]here is insufficient evidence to show that appellant shared Delgado's
      intent to distribute the marijuana, and that there is almost no evidence
      to establish affirmative conduct designed to aid the distribution. Her
      acceptance of the $300, and her silence at the checkpoint perhaps
      establish her desire that the unknown quantity of marijuana escape
      detection, and that she and Delgado arrive safely in Austin. That
      evidence does not, however, establish in any way her intention to
      associate herself with and participate in the distribution of marijuana.

Id. at 425.




      (f) Walker’s conduct after the arrest




                                                                                    33
      Killeen Detective Mallow interviewed Walker at some point after the arrest.

State Ex. 24. Walker’s responses to the questions put to him are for the most part

incomprehensible or he doesn’t respond. He made no mention of any conversations

he had with Pierce. See United States v. Sliwo, 620 F.3d 630, 633, 638 (6th Cir.

2010) (Government failed to prove aiding and abetting possession with intent to

distribute marijuana, in part because “[t]he government failed to provide any

evidence of conversations between Defendant and his alleged co-conspirators.”).




      (g) Summary

      Nothing Walker said or did prior to the arrest, during the arrest, or after the

arrest established that he was acting to assist Pierce in any possession with intent to

distribute. He was simply present. But mere presence at the scene of an offense or

even knowledge that an offense is being committed does not make one a party to an

offense. Ahrens v. State, 43 S.W.3d 630, 634 (Tex.App.—Houston [1st Dist.] 2001,

pet. ref’d). The evidence was insufficient to sustain Walker’s conviction under a

party theory.

                                  Prayer for Relief

      If the evidence is insufficient to sustain the charged offense but is sufficient

to support a lesser-included offense, the judgment should be reformed to reflect the

                                                                                    34
lesser-included conviction. Thornton v. State, 425 S.W.3d 289, 307 (Tex. Crim.

App. 2014). The parties agreed that the evidence was sufficient to support a jury

instruction on the lesser included offense for possession of methamphetamine under

one gram based on the 0.28 grams found in Walker’s pocket. 5 RR 24-26; CR 36.

Because the evidence was insufficient to support Walker’s conviction for the

charged offense, he requests that this Court vacate his sentence, and remand the

cause back to the trial court to modify the judgment to reflect a conviction for the

lesser included offense of simple possession, and for re-sentencing.




                                      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




                                                                                 35
                             Certificate of Service


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

Appellant’s 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 12th day of January, 2015.

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




                                                                              36
                    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 8,151 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: January 12, 2015




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