                                                                           ACCEPTED
                                                                      03-14-00473-CR
                                                                             4053890
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 2/6/2015 12:47:59 PM
                                                                     JEFFREY D. KYLE
                                                                               CLERK
                    No. 03-14-00473-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      2/6/2015 12:47:59 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

     SHAWN MICHAEL WALKER
                           VS.

         THE STATE OF TEXAS
                         ********
         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72029

                          ******

                STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000



Oral Argument Not Requested


                             1
                   TABLE OF CONTENTS
ITEM                                                     PAGE

Index of Authorities …………………………………………………………………..           3

Statement Regarding Oral Argument …………………………………………         4

Statement of the Case ………………………………………………………………..           4

Statement of Facts …………………………………………………………………….             4

Summary of State’s Argument ……………………………………………………          10

Argument and Authorities …………………………………………………………           10

       First Issue on Appeal ……………………………………………………….. 10
                    EVIDENCE SUFFICIENT TO PROVE APPELLANT
                    POSSESSED 4-200 GRAMS METHAMPHETAMINE
                    WITH INTENT TO DELIVER?

           Standard of Review …………………………………………………         10

           Application and Analysis …………………………………………      11

       Second Issue on Appeal ……………………………………………………        21
                  EVIDENCE SUFFICIENT TO PROVE APPELANT
                  POSSESSED METHAMPHETAMINE AS A PARTY?

           Standard of Review …………………………………………………         21

           Application and Analysis …………………………………………      21

       Remedy …………………………………………………………………………...             23

Prayer ………………………………………………………………………………………                  25

Certificate of Compliance with Rule 9 …………………………………………    25

Certificate of Service ………………………………………………………………….         26

                              2
                   INDEX OF AUTHORITIES

CASES                                                           PAGE

Branch v. State, 599 S.W.2d 324 (Tx. Cr. App. 1979) …………………… 18,19

Brooks v. State, 323 S.W.3d 893 (Tx. Cr. App. 2011) …………………….     10

Clayton v. State, 235 S.W.3d 772 (Tx. Cr. App. 2007) ……………………     11

Evans v. State, 202 S.W. 3rd 158 (Tx. Cr. App. 2006) ……………11-13,15,17

Friar v. State, No. 07-07-0152-CR, ……………………………………………….            20
      2008 Tex. App. LEXIS 6809, (Tx. App. Amarillo 7th Dist.
      2008, no pet.), not designated for publication.

Luke v. State, No. 14-99-01348-CR, ………………………………………………             16
      2001 Tex. App. LEXIS 652 (Tx.App. Houston 14th Dist.
      2001 rev. ref.), not designated for publication.

Sneed v. State, 406 S.W.3d 638 ……………………………………………………..             20
      (Tx. App. Eastland 12th Dist. 2013 no pet.)

Thornton v. State, 425 S.W.3d 289 (Tx. Cr. App. 2014) …………………..   24

OTHER

Texas Penal Code

     Section 7.01 ……………………………………………………………………….                    21

     Section 7.02(2) …………………………………………………………………..                  22

Texas Controlled Substances Act

     Section 481.002(38) …………………………………………………………..                 11




                                  3
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Shawn Michael Walker, was charged by indictment

with the offense of possession of methamphetamine with the intent to

deliver in the amount, including any adulterants and dilutants, of more

than four grams and less than two hundred grams. (CR-4).

      He was tried before a jury in the 264th District Court of Bell

County, Texas, Judge Martha J. Trudo presiding, and was found guilty by

the jury. (CR-36; RR5-38). Upon his election (CR-46), the same jury

assessed punishment at 55 years in the Texas Department of Criminal

Justice. (CR-40, 47; RR6-106).

      The Appellant gave timely notice of appeal (CR-52) and the trial

court certified his right to do so. (CR-41).

STATEMENT OF FACTS

      Officers of the Killeen Police Department were dispatched to a

high crime area known for drug offenses (RR4-21) in response to a

report of a man with a gun in a van. (RR4-19). Officer Firebraugh




                                      4
located the van by the license number and description provided in the

dispatch and stopped it. (RR4-20).

      The van was driven by Tiffany Diane Pierce (RR4-22, 23) and the

Appellant was in the passenger seat. He fit the description of the man

with the gun. (RR4-24, 25). The officer asked the Appellant for consent

to search the van but the Appellant told him that it belonged to his

girlfriend. Assuming that he meant Ms. Pierce, the officer asked her and

she stated that the van did not belong to her. (RR4-25, 26).         The

Appellant later confirmed that she was not the girlfriend to whom he

had referred. (RR6-12). Two other persons were located inside the van

and removed. (RR4-28).

      When Ms. Pierce exited the van she left the door open and Officer

Van Valkenburg observed in plain view a small baggie containing a

crystal substance on the floor by the driver’s seat. (RR4-28, 67). The

van was then searched. (RR4-28, 29, 67, 68).         The van was very

cluttered and appeared as if someone had been living in it. (RR4-30, 49).

      In that search the officers found lithium batteries and brake

cleaner used in the manufacture of methamphetamine (RR4-31). They

also found a crack pipe that was still hot to the touch (RR4-49) as well




                                     5
as numerous syringes, some with blood or fluid still on them. (RR4-52,

71).

       In the seat directly behind the front seat a blue bag was found

with a black box inside of it.       Inside that box was a ziplock bag

containing crystal methamphetamine and a razor blade. (RR4-50). Also

behind the front seat there was a bag containing pink colored crystal

methamphetamine. (RR4-70). In the rear or “trunk” area of the van was

a laundry bag containing a large bag of crystal methamphetamine

wrapped in a pair of pants (RR4-53) and a small make-up type bag full

of syringes. (RR52).

       The van also contained a quantity of MSM, which is a horse

supplement that is crystal in nature and is commonly used by drug

distributors   to   increase   the   weight   and   dilute   the   crystal

methamphetamine. (RR4-97).

       When the Appellant was being booked into the Killeen City Jail, he

was searched and a small baggie of crystal methamphetamine was

found in his right front pants pocket. (RR4-33, 34). When Ms. Pierce

was being searched at the jail tweezers were found concealed in her

vaginal area and a cord was protruding from her vagina. (RR4-54, 55).

After she refused to remove the cord she was transported to the


                                     6
hospital. When they arrived, however, she had removed a brown bag

from her vagina and that bag contained several smaller baggies of

crystal methamphetamine. (RR4-55).

      Detective Todd Mallow of the Killeen Police Organized Crime

division warned the Appellant of his rights. The Appellant waived those

rights and spoke to the officer. That interview was video recorded.

(State’s Exhibit 24).(RR5-5, 6, 7, 9).    That recording was admitted

without objection into evidence. (RR5-9).

      During the interview the Appellant repeated to the detective that

the van belonged to his wife or girlfriend. (RR5-12). He also stated that

he and Pierce had just picked up the two people who were found in the

van and that was confirmed by them. (RR5-13). The Appellant stated

that the pink substance was his, but insisted that it was not

methamphetamine but only “cut”, apparently referring to MSM. (RR5-

13, 21, 23). He identified the picture of that pink substance recovered

from the van. (State’s Exhibit 10). (RR5-11).

      Five items recovered from the van were submitted to the Texas

Department of Public Safety Laboratory in Austin.         All contained

methamphetamine. (RR4-85, 86). The test yielded the following results:

      1. State’s Exhibit 17-Small baggie from the Appellant’s pants


                                    7
         pocket-0.28 grams of methamphetamine. (RR4-100).

      2. State’s Exhibit 18-Small plastic baggie in plain view on floor of
         van next to driver’s seat-2.16 grams methamphetamine. (RR4-
         100, 101).

      3. State’s Exhibit 19-Baggie of pink substance admittedly the
         Appellant’s from the floor of the van behind the front seat-
         5.64 grams of methamphetamine. (RR4-102).

      4. State’s Exhibit 20-Gallon size baggie from the black box in blue
         bag from center floorboard behind front seat-40.58 grams
         methamphetamine. (RR4-102).

      5. State’s Exhibit 21-Gallon size baggie found wrapped in pants in
         clothes bag in “trunk” area of van-56.96 grams
         methamphetamine. (RR4-103).

Thus the total amount of methamphetamine found in the van and in the

Appellant’s pocket is 105.62 grams.

      Det. Todd Mallow testified that he is a detective with the

organized crime unit assigned to the DEA task force. (RR4-92). His

primary concentration is on drug cases. (RR4-92).        He has been a

detective some 3½ years and a police officer for more than 10 years.

(RR4-92). He stated that based upon his job and experience he has an

understanding of how drugs are distributed and the activities of

distributors. On many occasions he has offered expert testimony in

court concerning the possession of drugs with the intent to deliver them

as opposed to possession only for personal use. (RR4-107). He testified


                                      8
that he was fully familiar with the crystal methamphetamine trade in

the city of Killeen. (RR4-107, 108). The Appellant did not question his

qualifications as an expert.

      Det. Mallow testified that it was rare to see amounts of

methamphetamine of 100 grams or more in Killeen (RR4-110) and that

mere users typically have under a gram, while mid-level dealers are

most often found with 4 to 10 grams. (RR4-109, 110). Over 100 grams

points to major drug traffickers. (RR4-112). Mallow also stated that the

presence of cutting agents such as MSM indicates a distributor. (RR4-

111). He stated that when a large amount, coupled with paraphernalia

and cutting agents are discovered it indicates that the drug was

possessed with intent to deliver it, rather than merely for personal use,

even though many dealers are also heavy users. (RR4-112, 113).

      Detective Mallow testified that the usual price in Killeen for a

gram of methamphetamine is $100.00. (RR4-113). Thus the amount of

methamphetamine recovered in this case would be valued in excess of

$10,000.00. (RR5-11).




                                    9
SUMMARY OF STATE’S ARGUMENT

      When all the evidence, direct and circumstantial, is considered in

the light most favorable to the verdict, the combined logical force of that

evidence is sufficient for a rational jury to conclude beyond a reasonable

doubt that the Appellant possessed the methamphetamine with the

intent to deliver as charged in the indictment either individually, or as a

party, or both.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Was the evidence such that a rational jury could have found the

Appellant possessed the controlled substance in the amount of four to

two hundred grams with the intent to deliver beyond a reasonable

doubt?

Standard of Review

      In reviewing the sufficiency of the evidence the court must

consider all of the evidence in the light most favorable to the verdict and

determine whether, based upon all the evidence and reasonable

inferences therefrom, a rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323


                                    10
S.W.3d 893, 912 (Tx.Cr.App. 2011); Clayton v. State, 235 S.W.3d 772, 778

(Tx.Cr.App. 2007).

Application and Analysis

      The Appellant was charged with possessing methamphetamine

with the intent to deliver it. The Appellant challenges the sufficiency of

the evidence to prove that he possessed methamphetamine and that he

possessed it with the intent to deliver. His challenge is based upon the

alleged lack of evidence to link him to the methamphetamine found in

the van as opposed to that recovered from his pocket.

Possession of Controlled Substance in the Van

      Possession means actual care, custody, control, or management of

the substance. Section 481.002, (38), Texas Controlled Substances Act. In

order to prove possession of a controlled substance the State must

prove that the accused exercised care, custody, control, or management

over the substance and that the accused knew that the substance

possessed was contraband.        Whether by direct or circumstantial

evidence, the evidence must show that the defendant’s connection with

the drug was more than fortuitous, that is that he is linked to the

substance. Evans v. State, 202 S.W.3d 158, 161, 162 (Tx. Cr. App. 2006).




                                   11
      Mere presence where the drugs are found alone is insufficient to

establish possession, however, presence or close proximity to the drugs

coupled with other direct or circumstantial evidence linking the accused

to the drug may be sufficient to show possession beyond a reasonable

doubt. Evans at 162.

      Facts and circumstances that may link the accused to the

controlled substance include, but are not limited to: (1) the defendant’s

presence when the search is conducted; (2) whether the drug was in

plain view; (3) the defendant’s proximity to and the accessibility to the

substance; (4) whether the defendant was under the influence of drugs

when arrested; (5) whether the defendant possessed other contraband

or drugs 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

paraphernalia was present; (11) whether the defendant owned or had

the right to possess the place where the contraband was found; (12)

whether the place the drugs were found was enclosed; (13) whether the

defendant was found with a large amount of cash; and (14) whether the




                                   12
conduct of the defendant indicated a consciousness of guilt. Evans at Fn.

12.

      It is not the number of “links” that are present that determines the

issue, but rather the logical force of all of the evidence, both direct and

circumstantial. Courts reviewing all of the evidence in the light most

favorable to the verdict must assume that jurors made all inferences in

favor of their verdict so long as reasonable minds could disregard all

other inferences. Where the parties may disagree about the logical

inferences from undisputed facts, the choice made by the fact finder

cannot be erroneous. The weight of the evidence is always a matter for

the jury. Evans at 163, 164.

      In this case the evidence establishes the following links to the

methamphetamine:

    The Appellant was an occupant of the van where the

      methamphetamine was discovered.

    The Appellant stated that the van containing the drugs belonged

      to his wife or girlfriend who was not present. The Appellant

      stated that Ms. Pierce, who was driving was not his girlfriend.

    The Appellant stated that the other occupants had only recently

      entered the van.

                                    13
 There was over 100 grams of methamphetamine found at various

    locations in the van which was worth over $10,000.00.

 The methamphetamine was scattered throughout the van in

    different containers.

 One container, holding almost ½ of the total amount was found

    directly behind the seat occupied by the Appellant.

 The “Pink” methamphetamine (5.64 grams) was discovered in the

    same seat behind the Appellant. He admitted that it belonged to

    him but insisted that it was “cut” instead of methamphetamine

    itself.

   A quantity MSM, the horse supplement used by drug distributors

    to “cut” methamphetamine and add to its weight was found in the

    van along with lithium batteries and brake cleaner used in its

    manufacture.

 A pipe used to smoke methamphetamine was found in the van

    that was still hot to the touch.

 Numerous syringes were found in the van, some with blood on

    the needles.

 Ms. Pierce had methamphetamine in several individual packages

    concealed in her vagina.

                                   14
    The Appellant had methamphetamine on his person in his pocket.

      The Appellant attempts to take these evidentiary links and

separately consider them, arguing in essence that each link alone is

insufficient to prove possession. That, however, is not the test, but

rather the question is whether all the evidence, direct and

circumstantial, when combined establishes a link with the contraband.

In Evans, the Court of Criminal Appeals reversed the Court of Appeals,

noting that it had improperly analyzed each one of the links in isolation,

relying upon explanations of each of the individual links rather than

considering them as a whole.       The Court of Appeals also erred in

considering links might have connected the defendant to the

contraband, but did not exist in the case. Evans at 164.

      In this case the Appellant was present and in close proximity to

the methamphetamine. He had methamphetamine on his person and

admitted ownership of the “pink” methamphetamine, while claiming

that it was only “cut”. The fact that he admitted possession of what

tested as more than 5 grams of methamphetamine while claiming that it

was only a substance dealers used to dilute and add weight to the

controlled substance surely supports an inference that he was aware of




                                    15
the contraband in the van and exercised care, custody, control, or

management of it.

      While there was no evidence of an odor present, there was a pipe

used to consume methamphetamine that had been used so recently that

it was still hot; as well as several syringes with blood still on the needle.

      As to the right to control the van where the methamphetamine

was found, the Appellant told both the arresting officer and the

detective that the van belonged to his girlfriend or wife. He stated that

Ms. Pierce was not the person in question and that the other two people

in the van were recently arrived passengers. The jury could reasonably

find from that evidence that the Appellant had the right to control that

van. He told the police that it was not Ms. Pierce’s van and that the

others there were mere riders. He said that the van was the property of

his girlfriend or wife. Someone had control over it or the right to

control it.   The evidence based on the Appellant’s own admission

supported the jury’s finding that it was the Appellant. See Luke v. State,

No. 14-99-01358, 2001 Tex. App. LEXIS 652 (Tx. App. Houston 14th Dist.

2001 no pet.), not designated for publication. (One link to the controlled

substance was that the defendant was “closely related” to the car’s

owner).


                                     16
      The Court of Criminal Appeals ruling in Evans is equally applicable

here. The court said: “It is the logical force of the circumstantial

evidence, not the number of links that supports the jury’s verdict. The

logical force of circumstantial evidence is this case, couple with

reasonable inferences from them, is sufficient to establish, beyond a

reasonable doubt, that appellant exercised actual care, custody, control,

or management…..” Evans at 166. Such is the case here.

Intent to Deliver

      If the evidence is indeed sufficient to prove that the Appellant

possessed the methamphetamine, was it also sufficient to prove beyond

a reasonable doubt that it was with the intent to deliver?            The

Appellant’s premise is that the evidence only supports a finding of

possession of the 0.28 grams of methamphetamine found in his pocket

and, therefore, intent to deliver was not sufficiently proven. As noted

above, however, the evidence supports the finding of the jury that he

possessed the methamphetamine in the van as well.

      There is no statutory presumption regarding evidence of intent to

deliver. Instead, the individual direct and circumstantial evidence in the

case must, again, be considered as a whole and from the viewpoint most




                                   17
favorable to the verdict in making that determination. Branch v. State,

599 S.W.2d 324, 325 (Tx. Cr. App. 1979).

     In this case Detective Todd Mallow, of the Killeen Police

Department and DEA Task Force, testified as an expert on drug

trafficking in Killeen. His credentials to do so were unchallenged. He

testified that 100 grams or more of methamphetamine was very

unusual for Killeen and definitely indicated a major dealer. (RR4-110).

He also stated that the presence of cutting agents like MSM also was

indicative of drug dealing and that possession of those items in those

quantities indicated that the possession was with the intent to deliver

the controlled substance. (RR4-112). The same could be said of the

possession of two separate baggies, each with over 40 grams of the drug

inside. (RR4-113).

     Detective Mallow stated that most mere users possessed under a

gram of methamphetamine and that mid-level dealers usually had 4 to

10 grams. (RR4-109, 110). More than 100 grams was far in excess of

the amount of methamphetamine that would be possessed by a mere

user. (RR4-113).




                                  18
      The officer testified that the usual value of methamphetamine in

Killeen is $100.00 per gram (RR4-113) and that the amount possessed

in this case was worth in excess of $10,000.00. (RR5-11).

      The evidence was such that a rational jury could find beyond a

reasonable doubt that the Appellant possessed the methamphetamine

with the intent to deliver it. Actually, it would be difficult to see how it

could have found otherwise. The quantity possessed was extremely

large. See Branch at 325 (evidence of large quantities of controlled

substances or evidence of large quantities coupled with other factors

sufficient to support and inference that the possession was with the

intent to deliver).

      While in this case it is reasonable that the quantity alone is

sufficient to support a finding of intent to deliver, other circumstances

include the presence of the material used to dilute or increase the

weight of methamphetamine that is sold. The only logical inference

from that is that the accompanying methamphetamine was intended for

delivery as no mere user would dilute or increase the weight of his drug.

The batteries and brake cleaner used to make methamphetamine also

indicate more than mere possession.




                                    19
      It also must be noted that the Appellant does not contest his

possession of the methamphetamine found in his pocket and that he

admitted that the “pink” methamphetamine belonged to him, while

denying its identity. The total quantity of drug in those two items is

5.92 grams. This total also substantially exceeds the 1 gram that Det.

Mallow said was an average amount for a mere user and falls within the

mid-level dealer range.

       In Friar v. State, No. 07-07-0152-CR, 2008 Tex., App. LEXIS 6809

(Tx. App. Amarillo 7th Dist. 2008 no pet.), not designated for publication,

the court held that possession of 6 grams of methamphetamine, coupled

with a other circumstances, was sufficient to support a finding that the

methamphetamine was possessed with intent to deliver. See also Sneed

v. State, 406 S.W.3d 638, 642 (Tx. App. Eastland 11th Dist. 2013 no pet.),

holding that possession of 6.37 grams of cocaine, coupled with

testimony from a narcotics agent that the quantity was “quite a bit more

than for personal use. Thus even if the quantity calculation in this case

was to exclude everything except that conceded by the Appellant, the

evidence was still sufficient.




                                    20
Second Issue on Appeal

      Was the evidence sufficient for a rational jury to have found

beyond a reasonable doubt that the Appellant possessed the

methamphetamine with intent to deliver as a party?

Standard of Review

      The standard of review is the same as that in the first issue on

appeal.

Application and Analysis

      The indictment charged the Appellant with committing the

offense either individually or as a party with Tiffany Diane Pierce. (CR-

4). The trial court instructed the jury as to the law of parties (CR-31)

and permitted the jury to convict if it found beyond a reasonable doubt

that the Appellant committed the offense either alone or as a party with

Ms. Pierce. (CR-32). The verdict of the jury was a general one and did

not specify upon which basis the jury rendered its decision. (CR-36).

      The court instructed the jury in accordance with Section 7.01,

Texas Penal Code. That section provides that a person is criminally

responsible as a party to an offense if the offense is committed by his

own conduct, by the conduct of another for which he is criminally

responsible, or by both. The court also charged the jury as to when a

                                   21
person is criminally responsible for the conduct of another as set out in

Section 7.02(2) of the Code. (CR-32). It stated that a person is criminally

responsible for the conduct of another if, acting with intent to promote

or assist in the commission of the offense, he solicits, encourages, aids,

or attempts to aid the other person to commit the offense.

      As noted above the evidence was sufficient to support the finding

of the jury that the Appellant committed the offense as charged

individually. It is also sufficient to find that the Appellant and Ms. Pierce

were acting together in the commission of the offense. Ms. Pierce was

driving the van belonging to the Appellant’s girlfriend. No one else in

the van had any right to control the van except the Appellant. A large

quantity of methamphetamine, much in excess of the amount ordinarily

possessed by a mere user, was in the van, much of it directly behind the

seat in which the Appellant and Pierce were riding. There was MSM

used to cut methamphetamine for sale in the van that would have no

other use but for the purposes of preparation for distribution. The

Appellant claimed ownership of the “pink” methamphetamine found

near a major quantity, expressing the mistaken belief that it was only

“cut”. There was nothing in the evidence to show why he would possess

“cut” except as part of the distribution of the methamphetamine. A still


                                     22
hot pipe used to smoke methamphetamine and syringes that were still

bloody were in the van.

      Ms. Pierce, who had no relationship to the van belonging to the

Appellant’s girlfriend but was driving the van occupied by the Appellant,

nevertheless, had a quantity of methamphetamine in individual

packages hidden in her vagina. The Appellant had a small amount of the

controlled substance in his pocket.

      The Appellant and Tiffany Peirce were together in the van with a

very large and valuable quantity of methamphetamine and the items

used to process it for sale. They both had methamphetamine on their

person.

      Clearly, when the evidence is viewed from the standpoint most

favorable to the jury, a rational jury could have found from the evidence

and rational inferences based upon that evidence, beyond a reasonable

doubt that the Appellant possessed the methamphetamine with intent

to deliver either by his own conduct, as a party with Tiffany Pierce, or

certainly both.

Remedy

      While the State believes that the evidence was sufficient to prove

that the Appellant possessed all of the methamphetamine in the van

                                      23
with the intent to deliver and that the judgment of conviction must be

affirmed, it would also respectfully point out that the Appellant was

found with 0.28 grams of methamphetamine in his pocket and admitted

to the possession of the “pink” substance that proved to be 5.64 grams

of methamphetamine. The total thus falls within the amount alleged in

the indictment of four grams or more, but less than two hundred grams.

(CR-4).

      If, however, the court determines that the evidence was

insufficient to establish possession of all of the methamphetamine in the

van, the lesser included offense of possession of methamphetamine less

than one gram was included in the trial court’s charge to the jury. (CR-

32). Having been found in his pants pocket, the Appellant does not

contest his possession of 0.28 grams.           Thus the evidence is

unquestionably sufficient to support the lesser included offense and the

proper remedy, as prayed for by the Appellant, would be to modify the

judgment to reflect a conviction for that lesser offense and remand the

case to the trial court for sentencing. Thornton v. State, 425 S.W.3d 289,

307 (Tx. Cr. App. 2014).




                                   24
                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000


     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 3989 words.




                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                                     25
                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, John A. Kuchera, Counsel for Appellant, by electronic

transfer via Email, addressed to him johnkuchera@210law.com on this

6th day of February, 2015.



                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    26
