                                                                                 PD-0762-15
                          PD-0762-15                           COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 6/23/2015 1:39:45 PM
                                                                Accepted 6/24/2015 11:43:00 AM
                                                                                 ABEL ACOSTA
                                                                                         CLERK

                 NO. PI).
                               NTHE
COURT OF CRIMNAL APPEALS OF TEXAS


         STEPHEN SELLERS
                                Appellant
                                    v.

           STATE OF TEXAS
                                Annellee



          APPELLANT'S PETITION
        FOR DISCRETIONARY REVIEW

 Petition from the 19th Judicial District Court of Mclennan County, Texas
               Trial Court Cause Number 20I3-2242-CI and
  cause Number L0-r4-00226-cR in the Tenth court of Appeals of Texas

                             Chelsea Tijerina
                         State Bar No. 24076733
                   E-mail : attorneychelsea@gmail. com

                    Law Orrrcn oF SrMER &Tnrnxs
                          3706 Bellmead Drive
                           Waco, Texas 76705
June 24, 2015
                             (2s4) 412_2300
                       (888) 3 17 -7 61 0-Facsimile

                  ORAL ARGUMENT REQUESTED
                                                IDENTITY OF PARTIES AND COUNSEL

            Appellant, pursuant to Rule of Appellate procedure 3g.1(a), provides
                                                                                  the
  following list of all parties to the trial court's judgment and the
                                                                      names and addresses of
  all trial and appellate counsel.

  Appellant:                                                     Stephen Sellers
                                                                 TDCJ # 0194890s
                                                                 Joe F. Gurney Transfer Facility
                                                                 1385 F.M. 3328
                                                                 Palestine, Texas 75803

 Trial Court Judge:                                              Hon. Ralph Strother
                                                                 l9th Judicial District Court Judge
                                                                 Mclennan County Courthouse
                                                                 501 Washington Avenue - Suite 303
                                                                 Waco, Texas 7670I
                                                                 Telephone: 254-7 57 -5091

 Trial Counsel for Apoellant:                                    Josh Tetens
                                                                 Chelsea Tijerina
                                                                 Simer & Tetens
                                                                 3706 Bellmead Drive
                                                                 Waco, Texas 76705
                                                                 Telephone: 254-412-2300

Appellate Counsel for Appellant:                                 Chelsea Tijerina
                                                                 Simer & Tetens
                                                                 3706 Bellmead Drive
                                                                 Waco, Texas 76705
                                                                 Telephone: 254-412-2300

Trial Counsel for State:                                         Robbie Moody
                                                                 Evan OtDonnell
                                                                 Mclennan County District Attorney's Office
                                                                 219 North 6th Street, Suite 200
                                                                 'Waco,
                                                                        Texas 7670I

Appellate Counsel for State:                                     Sterling Harmon
                                                                 Gabriel Price
                                                                 Mclennan County District Attorney,s Office
                                                                 219 Norrh 6th Street" Suite 200
                                                                 Waco, Texas 7670I


Sellers v. State-Appellant's Petition ior Discretionarv Review
                                                                                                              Pege   1
                                                           TABLE OF CONTENTS

 IDENTITY OF PARTIES AND                                   COLNSEL                                        .......... I
 INDEX OF              AUTHORITIES..                                                                 ............       4
 STATEMENT REGARDING ORAL                                      ARGUMENT.....                             ............   6

 STATEMENT OF THE CASE/
 STATEMENT OF PROCEDURAL                                       HISTORY                                     ..........   6

 GROUND FOR                   REVIEW..                                                               ...........        8

                The Waco Court of Appeals disregarded established case law from
                                                                                     this
                Court and from sister courts of appeal to find the evidence legally sufficient.

 ARGUMENT.....                                                                                                ......8
           I.              Reason for Granting Review.
                                                                                                               ......9
          il.              Factual       Basis.                                                            .........9
        ru.                Case Law

                                        The distance between the defendant and the complaining witness
                                        proves the seminal factor in determining whether a knife is a
                                        deadly weapon.                                                              l3
        IV.                Conclusion                                                                              20

PRAYER FOR RELIEF....                                                                                               21

CERTIFICATE OF SERVICE.                                                                                            2l
CERTIFICATE OF COMPLIANCE                                                                                          22




Sellers v. State-Appellanfs Petition for Dissetionary Review
                                                                                                                 Page 2
 APPENDD(:                                sellers v. state,No. 10-14-00226-CR 2015 Tex. App. LEXIS 4702 (Tex.
                                          App.-Waco May 7,20I5,no pet. h.).




Sellers v. State-Appsllant's Petition for Discretionary Revisr
                                                                                                         Page 3
                                                         INDEX OF AUTHORITIES

 Texas Cases:                                                                                               Page No.

 Alexander v. state,No. 10-10-00279-cR, 2012Tex.App. LEXIS 3125 (Tex.
 App.-waco Apr. 18,2012, pet. ref d) (mem. op., not designated for publication)... .......
                                                                                           9

 Alvarez v. state,566 s.w.2d 612 (Tex. crim. App.                            l97g)              g, 9, 13, 15, 16, 17, lg,
                                                                                                                               lg
 Broolcs v. state,323                  s.w.3d 893 (Tex. crim. App. 2010) (plurality           op.)..                   ....    19

 citizens Nat'l Bank in waxahachie v. scott,195 s.w.3d 94 (Tex.                             2006).                     .....   19

Davidsonv. State,602 S.W.2d 272 (Tex. Crim. App.                               l9g0)                          ........ g. 13
Fregiav. State,185 S.W. 11 (Tex. Crim. App.                             1916)                          .g,9, 13,!4,15,         19

 Grover v. State,No. 14-04-00672-cR, 2005 wL 3435313 (Tex. App.-Houston
 [14th Dist.] Dec. 15, 2005, pet. ref d) (mem. op., not designated for publication).. g, 9, 15

Herbert v. state,63l s.w.2d 585 (Tex.                             App.-El   paso 19g2, no   pet.)..           .....   g, 9, 16

Lucero v. state,915 s.w.2d612 (Tex.                               App.-El paso 1996,pet.refd).              ........ g. 9" 16

Luna v. State, No. 0 I -98-0 I 079-cR, 2000 wL 7 30661) (Tex. App.-Houston
[1st Dist.] June 8, 2000, no pet.) (mem. op., not designated for publication)... ....... g, 9, 16

McCain v. State,22 S.W.3d 497 (Tex. Crim. App. 2000) (en                             banc)                             17.     lg
Petrie v. state, No. 10-13-00004-cR, 20t4 Tex. App. LEXIS 2g2g (Tex.                              App.-
WacoMar.13,20|4,pet.refd)(mem.op.,notdesignatedforpublication)..

Rogers v. state,877 s.w.2d 498 (Tex.                              App.-Fort worth   1994,pet.refd).                   g, 9, 16

Wade v. State,951 S.W.2d 886 (Tex.                               App.-Waco   1997,petrefd)...                     . g. 9. 16




Federal Case:                                                                                              Page No.

Jaclcson v. Virginia, 443 U.S. 307 (1979)                                                                                      t9


Sellers v. State-Appellant's Petition for Discrelionary Review
                                                                                                                         Page 4
 State Statutes:                                                          PageNo.

 Trx. R. App. P. 47.4
                                                                                        19

 TBx. R. App. P. 66.3




 Miscellaneous:                                                           Page No.

 43B George E. Dix et al., Texas Practice series: criminal practice and
 Procedure g 57:32 (3d ed. 2013)...
                                                                                        20




Sellers v. State--Appeltant's Petition for Discretionary Reviow
                                                                                     Page 5
                               STATEMENT REGARDING ORAL ARGUMENT

    TO TF{E HONORABLE JUDGES OF TI{E COURT OF CRIMINAL APPEALS:

               Mr. Stephen Sellers requests that oral arguments be granted. Appellant

    believes that this Court would benefit from arguments.




                                    STATEMENT OF' PROCEDURAL HISTORY

              This is a criminal case in which Stephen Sellers was convicted of

possession of a controlled substance in the amount of one gram or more but less

than four grams with intent to deliver.t In Cause Number 2013-2242-Cl. Mr.

Sellers was indicted as follows:

              "Stephen Kenneth Lane Sellers, hereinafter called Defendant, on or about
              the 25th day of September, A.D., 2013 in said county and state did then and
              there knowingly possess, with intent to deliver, a controlled substance,
              namely, methamphetamine, in an amount of one gram or more but less than
              four grams."2

              The State also submitted a special plea the jury alleging that "fAppellant]

used or exhibited a deadly weapon, to wit, a knife, during the commission of said

offense or during immediate flight therefrom.',3



'
1

  (I C.R. at 42).
1 <t c.n. at 4-5); (3 R.R. at 7).
' (I C.R. at36); (3 R.R. at 8).

Sellers v. State-Appellant's Petition for Discretionary Review
                                                                                            Page 6
              The case was tried to a jury on July 14 and 15,2014 in the 19th Judicial

 District Court.a The jury found Appellant guilty of the offense of possession of a

 controlled substance with intent to deliver.5 The jury also found the deadly

 weapon allegation true.6 Appellant elected that the jury assess punishment, and

 the     jury sentenced Appellant to 40 years in the Texas Department of Criminal

 Justice        - Institutional                Division.T

              Appellant timely filed a Notice of Appeal on July 2r,2014.8 on May 7,

 2015, the Tenth Court of Appeals ovemrled each of the issues that Appellant

 submitted on appeal.e Thereafter, Appellant filed a Motion for Rehearing which

the Tenth Court of Appeals denied on June 4,2015. Appellant's brief is due on or

before July 7 ,2015.




- (I C.R. at 3).
t      R.R. at r2o).
    1+
o
    1+ R.R. at t2t).
'   (4 R.R. atl74).
8
   c.R. at 59).
  1I
n
 seilrrs v. state,No. 10-14-00226-CR,2015 Tex. App. LEXIS 4702at *10 (Tex. App.-waco
May 7,2015 no pet. h.) (mem. op., not designated for publication).


Sellers v. StatFAppellant's Petition for Discretionary Review
                                                                                         Page 7
                                                                   GROUND FOR REVIEW

               The waco court of Appeals found the evidence of a deadly weapon

 sufficient in this case in contravention of established case law from this Court and

 from sister courts of appeals.




                                                                    ARGUMENT

               Texas case law holds that the distance between the defendant and the

 alleged target should be the paramount inquiry in ascertaining whether a knife is a

 deadly *"apon.t0 Despite settled law from this Court and from sister courts           of
 appeal, the Waco Court of Appeals wholly disregarded the distance between Mr.

 Sellers and the complaining witness and found the evidence legally sufficient to

support a deadly weapon finding.rr Additionally, the Waco court's opinion lacked

sufficient reasoning to support its conclusion. Therefore, this Honorable Court

should grarrtreview.


r0
     Alror",            s.w.2d 612,613 (Tex. crim. App. r97s); Fregia v. state,lg5 s.w. I 1,
                    v. state,566
12 (Tex. crim. App. 1916); Davidsonv. state,602 s.w.2d272,274 (Tex. crim. App. 19g0);
Herbert v. state,631 s.w.2d 585, 596 (Tex. App.-El paso 19g2, no pet.); cf, wadi v. stati, gst
s.w.2d 886, 893 (Tex. App.-waco 1997,petrefd); Rogers v. state,g77 s.w.2d 49g, 500
(Tex. App.-Fort Worth l994,pet. refd); see also Lucero v. S/ate, 915 S.w.2d 612,615 (Tex.
App.-El Paso 1996, pet. ref d); Grover v. state,No. 14-04-00672-cR,2005 wL 3435313, at*4
(Tex. App.-Houston [4th Dist.] Dec. 15, 200s,pet. refd) (mem. op., not designated for
publication); Lunav. state,No. 01-98-01079-CR,2000 wL 730661,at *3 (Tex. App.-Houston
[1st Dist.] June 8, 2000, no pet.) (mem. op., not designated for publication).


Sellers v. State--.Appellant's Petition for Discretionary Review
                                                                                            Page   I
              L             Reason            for Granting         Review

               The Tenth Court of Appeals' decision in this case conflicts with decisions

 from this Honorable Courtl2 as well as with decisions from sister courts              of
 appeal.l3 Additionally, the Waco Court of Appeals "has so far departed from the

 accepted and usual course ofjudicial proceedings... as to call for an exercise              of
 the Court of Criminal Appeals'power of supervision.,'14

              il.            Factual Basis

              On September 25,2013, a female officer was driving her squad car scouring

the streets of Mclennan County for a burglary suspect.l5 The officer turned                 off


 'r Sr\ers,2Ol5   Tex. App. LEXIS 4702at *10.
 t2
   TEx. R. App. P. 66.3(c); see Alvarez v. Stote,566 S.w.2d 612,613414 (Tex. Crim. App.
!2lg); Fregia v. State,185 S.W. fi,12 (Tex. Crim. App. 1916).
"  TEX. R. App. P. 66.3(b); Herbert v. State,631 S.W.2d 585, 586 (Tex. App.-El paso 19g2, no
pet.); cf. wade v. state, 951 s.w.2d 886, 993 (Tex. App.-waco 1997,petref d) (the court
found that a six-inch blade was 'ocapable of causing death or serious bodily injury', where the
defendant had the victim pinned by one arm and pulled out the blade with the other arm); Rogers
v. state,877 S.W.2d 498, 500 (Tex. App.-Fort worrh 1994,pet. refd) (although the knife in
that case was closed, the court held it was solely the distance (two feet) between the alleged
attacker and the victim that rendered the closed knife a "deadly weapon"); see also Lucero v.
state,915 s.w.2d612,615 (Tex. App.-El paso 1996, pet. refd); Grover y. s/a/e, No.
l4-04-00672-CR, 2005 WL 3435313, at*4 (Tex. App.-Houston [4th Dist.] Dec. 15, 2005,
pet. ref d) (mem. op., not designated for publication); Luna v. State,No. 01-98-01079-CR, 2000
wL730661), at *3 (Tex. App.-Houston [lst Dist.] June 8,2000, no pet.) (mem. op., not
designated for publication) (recognizingdistance between the assailant and the victim is a critical
evidentiary factor in whether the knife is a deadly weapon); but see Alexander v. S/a/e, No.
l0-r0-00279-cR, 2012Tex. App. LEXIS 3125, at *4 (Tex. App.-waco Apr. lg,2012,pet.
refd) (mem. op., not designated for publication) and see Petrie v. State,No. 10-13-00004-CR,
2014Tex. App. LEXIS 2829, at *6 (Tex. App.-waco Mar. 13,20r4,pet. refd).
to
   Tsx. R. App. P.66.3(0.
't 13 R.R. at 15, r8).

Sellers v. State--.Appellant's Petition for Discretionary Review
                                                                                               Page 9
her headlights to more inconspicuously hunt for the perpetrator.t6 While driving

with her headlights blacked out, the officer observed "[Appellant] walking in the

middle of the street," a "detainable offense."tt App"llant "went behind another

vehicle."r8 The officer then activated her overhead lights at which point Appellant

extricated himself from behind the vehicle and "came out toward the patrol car.,,te

The officer asked Appellant what he was doing and Appellant responded that he

was walking to a friend's house.20 Appellant motioned with a cigarette in his left

hand2t while holding a Gerber multi-tool and a cell phone at his right side in his

right hand.zz At this point, Appellant and the officer were standing several feet

 apart.z3 Appellant made no threatening gestures or statements during his

encounter with the officer.2a

             The officer told Appellant that sheoosaw the knife" in his hand and "asked

him to set it down on the ground and then step away from it. Anything that can

hurt me, any sharp objects, anything like that, is a concern for me. I don't want to


t6
   13 R.R.        at 16).
t7
   13 R.R.        at t7).
t8
   13 R.R.        at r7).
'n 13 R.R.        17-1s).
'o Stut"" Exhibit               1: in-car video.
"2' Id.
   Id.
23
   Id.
2o
   Id.


Sellers v. StatFAppellanfs Petilion for Discrolionary Revisw
                                                                                     Page 10
 be stabbed."" Appellant immediately complied and set the knife down on the

 street.26 The Gerber knife was later released to Appellant's girlfriend and did not

 make           it into evidence.tt Altho,rgh there was no testimony in the reporter,s record

 regarding the distance between Appellant and the officer while Appellant had the

 knife in his hand, the video demonstrates that Appellant was several feet away

 from the officer. The chart below summarizes the video that captured the

 interaction between Appellant and the officer:

          Time                                                   Action
           0:37                    The officer blacks out lights of cop car.
           0:46                    The officer turns left onto a dark street.
           0:51                   Appellant walks across the dark street.
           1:00                    The officer activates her vehicle's headlights.
           1:05                    Appellant walks out onto the street from behind a vehicle.
           1:09                   Officer: "What are you doing here?
                                          -
                                         The officer stands several feet away from Appellant.
           l:14                   Appellant: "walking to my friend's house where            li*r..
                                                                                       -y gitl
                                          -
                                         Appellant motions with a cigarette in his left hand.
                                          -
                                         The Gerber multi-tool is at Appellant's right side in his
                                         right hand. The right side of Appellant's body is facing
                                         away from the officer.
           1:15                   Officer: "Why don't you use the sidewalk?,,
                                         -
                                         officer walks toward Appellant. officer does not appear to
                                        be in fear of Appellant.
           1:   l8                Appellant: "I stay in the streets 'cause I don't like walking down
                                  that way - have someone walk out on me."
           l:21                                                            ? No gun or -"


"
2u
     13 R.R. at l9).
     State's Exhibit 1: in-car video.
"    13 R.R. at 49).



Sellers v. State-Appellant's Petition for Discrelionary Review
                                                                                                 Page   1 1
            l:22                    Appellant: "Yeah, that's why I was walking with it like that.
                                           -
                                          Appellant takes the Gerber multi-tool out of his right hand
                                          with his left hand. The knife is bladed out. Appellant makes
                                          no threatening motions.
                                          Appellant holds the knife up for the officer to see.
                                    _ _;
             l:24                   Ofn..i
            I:26                   Appellant: "Sure."
                                       - Appellant immediately complies and sets the knife down-
            I:28                   Officer: "All right, thank you. I appreciate it.;
     1,:29     - 2:54              The officer and Appellant converse calmly. rn. om..iao., not
                                   appear to be frightened of Appellant.
            2:55                   The officer walks toward Appellant. The officer i@
                                   feet away from Appellant.
    2:56 -3:37                     The officer continues questionins Aooellant *itt-rrf annaret-tt fcqr
       3:28                        Officer: o'So let me ask you when you saw my car 'cause I know
                                                                                     --
                                   I was blacked out."
           3:31                    epp.ttu
           3:32                    Officer: "(lh huh."
           3:33                    Appell
                                       - Appellant motions to the area behind the vehicle
           3:35                    officer: "Thatos why you went over there. oka1r, tause I was like
                                   wondering there."
           3:41                    Appellant: "No, okay, what would you think _ you see a car
                                   coming up -"
           3:43                    Officer: "Oh no, I agree.
           3:44                    Appellant: "Shoooot."
           3:45                    officer: 'oEspecially blacked out. That would,ve scarid the heck
                                   out of me. Do me a favor - take a step back from here, okay. I'm
                                  just going to bring this over here.,,
                                      - Per the officer's instruction, Appellant takes a step
                                          backward.
                                      - The officer steps forward toward Appellant to retrieve the
                                   _ __ knife and picks up the knife off the street.
          3:5     1               Officer: "All rightr you can come back over here."
          3:56                    Officer: "Just come back over here for me.,'


Sellers v. Stats-Appellant's petition for Discretionarv Review
                                          -      Per the officer's instruction, Appellant takes a few steps
                                                 toward the officer.
                                          -      Appellant talks on his cell phone and continues smoking his
                                                 cigarette.
                                          -      Appellant is still many feet away from the officer.

               The officer then ran Appellant's name through a State of Texas and national

 check and determined that Appellant had a child support warrant out for his

 arrest.28         At that point, the officer arrested Appellant.te After arresting Appellant,

 the officer ventured behind the vehicle from whence Appellant had exited

 initially30 and discovered a black pouch3l containing "scales, methamphetamine, a

 little tray to weigh the methamphetamine and baggies.,,32

              III.          Case Law

              This Honorable Court has found that the physical proximity of the victim to

the knife represents the dominant factor in determining whether a knife is a deadly

weapon." Where the evidence does not show that the victim is within',striking

distance by means of the use of the knife," the evidence does not support that the




'8 13 R.R. x22).
'e 13 R.R. at22,24).
to
     13    R.R. at24).
3t
     Id.
:: Id (3 R.R. at72).
" Alvarez v. State,566 S.W.2d 612, 613 (Tex. Crim. App. l97S); Fregia v. State,l g5 S.W. I                    l,
12 (Tex. crim. App. 1916); Davidsonv. state,602 s.w.2d,272,274 (Tex. crim. App. l9g0).


Sellers v. State-Appeltant's Petition for Discretionary Review
                                                                                                          Page 13
 knife is deadly by use.3a In Mr. Sellers' case, the Waco Court of Appeals

 specifically noted that Appellant was "about 5 feet" from the officer when he had

 the knife in his hand,3s impliedly finding that the officer was outside of
                                                                                             the zone
 of danger from the knife. Although this Court and sister courts of appeal have

 focused on the importance of the distance between a defendant in possession of a

 knife and the complaining witness, the Tenth Court of Appeals ignored the

 distance factor entirely and held that the evidence in Mr. Sellers' case supported a

 finding that the Gerber knife was a deadly weapon.ru

              A.            Texas Courts Hold that a Kntfe is a Deadly l(eapon by (Jse only
                            if the victim is within the zone of Danger of the Knife.

                         i.               Case Law               from this Honorable Court
              rn Fregia, this court noted that to constitute a deadly weapon, the

complaining witness must be "within such distance" that adefendant could inflict

"an injury upon the alleged assaulted party by the use of the means employed.,,37

In that case, this Court found that the distance between the parties or whether the

alleged victim "was in danger of being cut by the knife" was'too uncertain and

indefinite...to show that he was within striking distance by means of the use of the

3a
   Fregia v. State,185 S.W. ll,12 (Tex. Crim. App. 1916).
"  sellers v. state, No. 10-14-00226-cR, at *9-10 (Tex. App.-waco May 7,2015 no pet. h.)
(p.*. op., not designated for publication).
'" Id. at *8-9.

Sellers v. State-Appellant's Petition for Discretionarv Review
                                                                                                  Page 14
 knife."38

               Decades later, in Alvarez, this Court considered whether a defendant's

 holding a linoleum knife and advancing to within three or four feet of an officer

 provided sufficient evidence of a deadly weapon.'n In that case, the officer pointed

 his service revolver at the defendant and ordered the defendant to drop his knife.ao

 The defendant took a swing at the officer with the knife and the officer shot the

 defendant in the l.g.ot The defendant continued advancing toward the officer

 wielding the knife until the officer threatened to kill the defendant.a2

              Evaluating the evidence for legal sufficiency, the Court of Criminal Appeals

 in Alvarez noted the following: (1) the officer did not suffer any wounds, (2) the

record reflected no testimony as to the size of the knife's blade, although the

arresting officer "testified it looked sharp," and (3) the officer testified ,,that he

was in fear of serious bodily                                   itjnty or death while the appellant brandished the

knife."43 Taking these factors into account, this Court found that the evidence


37
     Fregia,185 S.W. at12.
t8
     Id. lthe Court noted that had the defendant possessed a oopistol"
                                                                  instead of a knife and the
defendant was shooting at the victim within a short range, the Court'owould have had a different
proposition").
',e Alrare, v. Stote,566 S.w.2d 612,613414 (Tex. Crim. App. 197g).
oo
    Id.
o' Id.
o2
    Id.
ot
    Id. at 614.


Sellers v. Stat+Appellant's Petition for Discretionary Review
                                                                                                                 Page 15
regarding "the manner of its use or intended use insufficient to show that the

 linoleum knife was capable of causing death or serious bodily injury."aa

                        ii.                Case Luw               from Lower Appellate Courts
               Texas courts of appeal have held that Alvarez stands for the proposition that

 the "critical evidentiary factor in that case was the distance between the actor and

 the complainant at the time of the assault."a5

              ln Herbert,the Eighth Court of Appeals considered the sufficiency of the

evidence to support a deadly weapon finding where the defendant held a kitchen

knife to his wife's throat and threatened to kill her.a6 The court in Herbert

distinguished Alvarez as follows:

              'oThe critical evidentiary factor lin Alvarez] was the distance between the
              actor and the complaint at the time of the assault. Brandishing a three-inch
              blade at a distance of six feet or a linoleum knife at a distance of four feet

44
   Id.
as
   Herbert v. State,631 S.w.2d 585, 586 (Tex. App.-El paso 1982, no pet.); cJ; Ilade v. State,
951 S.W.2d 886, 893 (Tex. App.-Waco 1997, pet ref d) (the Court found that asix-inch blade
was "capable of causing death or serious bodily injury" where the defendant had the victim
pinned by one arm and pulled out the blade with the other arm); Rogers v. State,877 S.W.2d
498, 500 (Tex. App.-Fort Worth 1994,pet. ref d) (although the knife in that case was closed,
the court held it was solely the distance (two feet) between the alleged attacker and the victim
that rendered the closed knife a "deadly weapon"); see also Lucero v. ,S/ate, 915 S.W.2 d 612,615
(Tex. App.-El Paso t996,pet. refd); Grover v. state,No. 14-04-00672-cR, 2005 wL
3435313, at *4 (Tex. App.-Houston [14th Dist.] Dec. 15, 2005,pet. refd) (mem. op., not
designated for publication); Luna v. State,No. 01-98-01079-CR, 2000 wL 730661), at *3 (Tex.
App.-Houston [lst Dist.] June 8, 2000, no pet.) (mem. op., not designated for publication)
(recognizing distance between the assailant and the victim is a critical evidentiary factor in
whether the knife is a deadly weapon).
a6
   Herbert 631 S.W.2d at 585.


Sellers v. State--Appellant's Petition for Discretionary Review
               did not constitute a manner of use posing a sufficient threat of                                 serious
               bodily injury or death to justifu the verdict. From both a practical and legal
               standpoint, the effective range of the weapon is of primary consideration
                                                                                           in
               categorizing an instrument as deadly. This, more than any other
                                                                                  factor, has
               led to the different treatment of firearms and knives in making this
               determination. The distance factor, alone, distinguishes.. . Alvarez from
                                                                                          the
               present case, to the extent of producing a different result.,'47

                       iii'              McCain did Not Eliminate the Zone of Danger Requirement
                                         for a Knife to Constitute a Deodly l(eapon iy (Ise.
               The Waco Court of Appeals relied on this Court's holding in McCain for

 the proposition that a knife may constitute a deadly weapon                                   if it is capable of
 causing deadly force, even                                if the actor   has no intention of actually using the deadly

 force.as

              ln McCain, the Texas Court of Criminal Appeals found that the mere

carrying of a "butcher knife during such a violent attack as occurred in the present

case was            legally sufficient for a fact finder to conclude that the 'intended use, for

the knife was that it be capable of causing death or serious bodily injury."ae

              However, a review of the facts of that case demonstrates that the defendant

brought himself well within the defined zone of danger for a knife. In McCain,the

indictment alleged that the defendant did "use and exhibit a deadly weapon, to wit:

47
     Id.
a8
     stllrrsstate,No. l0-14- 00226-cR at *g-9 (Tex. App.-waco May 7,2015 no pet. h.)
                  v.
(mem. op., not designated for publication) (citing McCainv. State,22 S.w.3d 497,
                                                                                 503 (Tex.
Crim. App. 2000) (en banc)).


Sellers v. State-Appellant's Petition for Discretionarv Review
                                                                                                                     Page 17
a    knife, which in the manner of its use and intended use was capable of causing

death or serious bodily injury."so At trial, the evidence showed that the defendant

kicked in the door of the victim's kitchen and "hit her numerous times with his

fist."5r During the brutal attack,the victim saw a knife sticking out of the

defendant's back pocket.52 When the police later arrested the defendant, they

discovered a butcher knife with a nine-inch blade on the defendant's person.t'                It

can be inferred that since the defendant got close enough to the victim to strike the

victim with his fist, he was within the zone of danger for         a   knife established in

Alvarez.so As such, McCain created no exception for merely possessing a weapon

when not within the zone of danger.

             B.           The officer was Not within the Danger zone   for a Knife   when
                          Appellant Had the Knife in His Hand.

             The video captured by the officer establishes that a zone of several feet was

maintained between the officer and Appellant during the time Appellant had the

knife in his hand down by his side.55 In fact, the Waco Court of Appeals

specifically found that Appellant was "about five feet" from the officer when he


on
     Mccain, 22 s.w.3d at 503.
so
     Id. at499.
st
   Id.
52
   Id.
53
   Id.
to
   Src Id. at613-14.


Sellors v. State-4ppellant's Petition for Discretionary Review
                                                                                              Page 18
 had the Gerber knife in his hand.56 Appellant was simply too far away from the

 officer when he could have realistically deployed the knife in a deadly manner.

 Because the evidence is insufficient to show that the officer was within the
                                                                              zone               of
 danger of a knife, the evidence does not support that the knife is deadly by use.57

 Therefore, this Court should grantMr. Sellers' Petition for Discretionary Review.

              c.            The waco court Failed to Address the zone of Danger.

              This Court holds that a "rigorous and proper application of this State,s legal

 sufficiency standard" is an "exacting standard."58 A memorandum should be ,,no

 longer than necessary to advise the parties of the court's decision and the basic

reasons for it."se However, the Waco Court's memorandum on Mr. Sellers, case

ooexceeds
                    what is permissible by failing to give any reason whatsoever for its

conclusion that the evidence established6O that the officer was within the zone             of
danger of the Gerber knife in Mr. Sellers, possession.




55
    State's Exh. 1: in-car video.
s6
    sellers v. State,No. l0-14-00226-CR at *10.
s7^
    Alvarez,566 s.w.2d at 613-14; Fregia v. state,lg5 s.w. rr,l2(Tex. crim. App. 1916).
s8
    Broolrs v. State,323 S.w.3d 893, 90; (Tex. Crim. App. 2010) (referencin g Jaclcson v.
Virginia,443 U.S. 307 (1979)).
5e
    Tex. R. App. P.47.4.
u0
    citirens Nat'l Bank in waxahachie v. scott,r95 s.w.3d 94, g6(Tex. 2006).


Sellers v. StatFAppellant's Petition for Distretionarv Review
                                                                                            Page 19
               The Waco Court's departure from the "accepted and usual course ofjudicial

 proceedings" calls for this Court to grant Mr. Sellers' Petition.6t Texas Rule                 of
 Appellate Procedure 66.3(f) 'omuy cover holdings by the courts of appeals with

 little or no significance beyond the particular                 cases in which they are made but that

 are so dramatically or blatantly incorrect that basic notions of fairness dictate that

 the wronged party may not be left without recourse."62 Therefore, ata minimum,

 this Court should grant IW. Sellers' Petition and order the Waco Court of Appeals

 to provide its basis for determining how the evidence supports a deadly weapon

 finding in light of controlling case law regarding the distance between a defendant

 with      a   knife and his purported victim.

               IV           Conclusion

               Finding the evidence legally sufficient to support a deadly weapon in Mr.

Sellers' case required the Waco Court of Appeals to blatantly disregard Texas case

law. Therefore, this Honorable Court should grantreview. At the very least, this

Court should demand an explanation from the Waco Court of Appeals as to how

the evidence in his case supports a deadly weapon finding when the officer was

outside the danger zone of Mr. Sellers and his knife.



6t
     Tnx. R. App. 66.3(f).
u' 438 George    E. Dix et al., Texas Practice Series: Criminal Practice and Procedure
                                                                                           $ 57:32

Sellers v. State-Appellant's Petition for Discretionarv Review
                                                                                                 Page 20
                                                                   PRAYER FOR RELIEF

               Mr. Sellers prays that this Court grant his Petition for Discretionary Review.



                                                                         Respectfully submitted,

                                                                         Law Orrrcn oB Srvrnn & TnrnNs



                                                                         3706 Bellmead Drive
                                                                         Waco, Texas 76705
                                                                         (2s4) 412-2300
                                                                         (888) 3 17 -7 610-Facsimile
                                                                         E-mail : attorneychelsea@gmail. com
                                                                         State Bar No. 24076733
                                                                         ATTORNEY FOR APPELLANT




                                                        CERTIFICATE OF SERVICE

              On June 23,2015, a copy of this Motion for Rehearing was delivered to the

Mclennan County District Attorney by facsimile.


                                                                         Chelsea Tijerina




(3d ed. 2013).


Sellers v. State--.Appellant's Petition for Discretionarv Review
                CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P.9.4
                   certificate of compliance with Type-volume Limitation,
                                Typeface Requirements, and Type Style Requirements

 1.           This brief complies with the type-volume limitation of TBx. R. App. p.
              9.4(i)(2)(D) because:

               r            this brief contains 3,450 words, excluding the parts of the brief
                            exempted by Tnx. R. App. p. 9.4(i)(1) or,

              D             this brief uses a monospaced typeface and contains lines of
                            text, excluding the parts of the brief exempted by Tnx. R. App. p.
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2.            This brief complies with the typeface requirements and the type                  style
              requirements of Tpx. R. App. P. 9.a(e) because:

              r             this brief has been produced on a computer in conventional typeface
                            using Microsoft Word in Times New Roman 14 point font in the body
                            of the brief and Times New Roman 12 point font in the footnotes.

              n             this brief is a typewritten document printed in standard 10 character
                            per inch monospaced typeface.




                                                                            z/--)-

                                                                  \     .."----      {--\
                                                                      Chelsea Tijerina
                                                                      Attorney for Appellant




Sellers v. State--Appellant's Petition for Discretionary Review
                                                                                               Page 22
                                            IN THE
                              TENTH COURT OF APPEALS

                                     No. L0-L4-00226-CR

STEPHEN KENNETH LANE SELLERS,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee


                               From the L9th Distuict Court
                                Mclennan County, Texas
                               Trial Court No. 2013-2242-CL

                               MEMORANDUM OPINION

      Stephen Kenneth Lane Sellers was convicted of possession           with the intent to

deliver a controlled substance, that being methamphetamine, and sentenced to 40 years

in prison.   See TBx.   Hr,qrrH & Serurv Conu Aur.r. S 481.1,12 (a) (c) (West 2010). Because

the evidence was sufficient to support the conviction, the trial court's judgment is

affirmed.

Be,crcnouNo

      Waco Police Department Officer Cassie Price was patrotling a specific area of
 town in the early morning hours looking for a suspect in a recent burglary. When she

 arrived at the area of the burgla{f, she furned off her headlights and noticed a man

 walking down the middle of the street. She turned on her headlights and the man

 ducked behind a parked car. She activated her overhead tights and the man emerged

 from behind the car, holding a knife and cell phone in one hand and a cigarette in the

 other. The man, who was identified as Sellers, was eventually                  arrested     on an
 outstanding warrant. When the location where he had been hiding was searched after

 his arrest, a pouch containing a sellable amount of methamphetamine and delivery

paraphernalia was found. Sellers was later charged with possession with the intent to

deliver methamphetamine.

Surrrclnrrtcy oF THE EvTDENCE

             In two issues on appeal, Sellers asserts that the evidence was insufficient to show

that he possessed or intended to deliver a controlled substance or that he used or

exhibited a deadly weapon.

         The Court of Criminal Appeals has expressed our standard of review of                   a


sufficiencv issue as follows:

                In determining whether the evidence is legally sufficient to support
         a conviction, a reviewing court must consider all of the evidence in the
         light most favorable to the verdict and determine whether, based on that
         evidence and reasonable inferences therefrom, a rational fact finder could
         have found the essential elements of the crime beyond a reasonable doubt.
         Jackson a. Virginia, 443TJ.5.307, 3'J.8-19 (1979); Hooper o. State,214 S.W.gd g,
         13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
         responsibility of the trier of fact fairly to resolve conflicts in the testimony,
Sellers v.   State                                                                           page2
          to weigh the evidence, and to draw reasonable inferences from basic facts
          to ultirnate facts." lackson, 443 U.S. at 319. "Each fact need not point
          directly and independently to the guilt of the appellant, as long as the
          cumulative force of all the incriminating circumstances is sufficient to
          support the conviction." Hooper,2l4 S.W.3d at 13.

 Lucio o. State,351 S.W.3d878,894 (Tex. Crim. App. 201,1).

          The Court of Criminal Appeals has also explained that our review of "all of
                                                                                      the

evidence" includes evidence that was properly and improperly admitted. Conner                 o.


 State,67 S.W.3d 1'92, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts          in favor of the

prosecution and therefore defer to that determination. Jackson a. Virginia, 443 U.S. 302

326, 99 S. Ct. 278'!', 61' L. Ed. 2d 560 (1979). Further, direct and circumstantial
                                                                                    evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish    guilt."   Hooper a. State,214 S.W.3d9,'1.3 (Tex. Crim.   App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers a. State,805 S.W.2d 459,461 (Tex.      Crim. App. j,ggl).

Possession


         sellers first argues that the evidence was insufficient to support the possession

element of the offense.

         To prove unlawful possession of a controlled substance, the State must prove


Sellers v. State
                                                                                         Page 3
 that    (1) the accused exercised controf management, or care over the substance;
                                                                                   and (2)

 the accused knew the matter possessed was contraband. Eoans o. State,202
                                                                          S.W.3d Lsg,

 L6L (Tex. Crim.      App.      2006); see also Tsx.   HrA.rrn & serurv Coor ANN. S 4g1.002(3s)

 (West 2010) ("'Possession' means actual care, custody, control,                           or   management.,,).

 Possession is     not required to be exclusive.         Roberts a. state,        No. 10-14-0004g-cR           2015

 Tex. App. LEXIS 78, *g-4 (Tex.           App.-waco      Jan.   &   2a'r.s,   no pet. h.) (not designated for

 publication).

          When the defendant is not             in   exclusive possession          of the place where           the

 controlled substance is found, then additionaf independent facts and circumstances

must link the defendant to the substance in such a way that                           it   can reasonably be

concluded that the defendant possessed the substance and had knowledge of                                it.    See


Poindexter a. State,153 S.W.3 d 402,406 (Tex. Crim. App. 2005). Whether
                                                                        this evidence is

direct or circumstantial, "it must establislr, to the requisite level of confidence, that the

accused's connection          with the drug was more than just fortuitous." Iil.                405-406 (quoting

Brown o. State,    91'1'   5.W.2d744,747 (Tex. Crim. App. 1995)). Evidence which links the

defendant to the controlled substance suffices for proof that he possessed it knowingly.

Broznn v. State,911 S.W.2d744,747 (Tex. Crim.             App. 1,gg1). It is not the number of links

that is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial. Eaans, 202 S.W.3d at            1,62; Santiesteban-Pileta        a. State, 421. S.W3d g,        -!.2



(Tex.   App.-Waco          2013, pet. ref'd).


Sellers v. State
                                                                                                         Page 4
 Facts


          The evidence showed that Sellers was walking down a residential street
                                                                                 at four

 in the morning. As a police car without its lights on approached, he concealed
                                                                                himself

 behind a parked vehicle. Once the officer, Cassie Price, activated her overhead
                                                                                 lights,

 Sellers emerged from behind the vehicle holding a multi-tool utensil         with the knife
 blade   out. Price asked Sellers to drop the knife and    step away from   it.   He complied.

 While speaking with Price during the encounter, Sellers used his cell phone and made

 at least one call, informing Price that he was talking to a girl.

          After backup arrived, Sellers was arrested on an outstanding warrant. price then

decided to search the area behind the vehicle where Sellers had been hiding. There,
                                                                                    she

found a black pouch containing 2.46 grams of methamphetamine, a shattered glass

pipg a straw, a set of scales, a small tray, several baggies, and an Eunount of cash. A

short time later, a woman, Sherri Vannatt4 arrived on the scene. Vannatta advised

Price that she had come at Sellers's request to get Sellers's belongings. She told price

that the black pouch was Sellers's, and identified the pouch and confirmed at trial that it

was Sellers's. Further, Sellers's cell phone, which was searched later pursuant to           a

warrant, showed an unsent text message to Vannatta which referenced the black pouch.

Application

         Although sellers was not         at the     specific location at the time the

methamphetamine was located, we find that the evidence sufficientlv linked Sellers to
                                                                  J




Sellers v. State
                                                                                        Page 5
 the drugs to support the possession element of the offense. Sellers would like us to

 review and give great scrutiny to links not present in this case. However,
                                                                            the absence of

 any of the various factors discussed in other cases does not constitute
                                                                         evidence of

 innocence to be weighed against the factors present in this                     case.   Santiesteban-pileta o.

 Stnte, 421 S.W         d 9,1..5 (Tex. App.
                   .3
                                              - Waco 20-1.9, pet. ref, d).
 lntent to Delioer

          Sellers also contends the evidence is insufficient to prove that he had
                                                                                  the intent to

 deliver methamphetamine.

          Intent to deliver may be established by expert testimony, such                  as   testimony from

 experienced law enforcemenf and by circumstantial evidence. Moreno o.                                      -1.95
                                                                       State,

 S'W'3d 32'J', 325 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); Terrell a.
                                                                                 State,                   20'1.'1.


Tex' App. LEXIS 5605 (Tex. App.-Waco July                     20,20'1,'1,,   pet. ref'd) (not designated for

publication).

Additional Facts

         Some of the facts that support the element of possession also support
                                                                               the element

of intent to deliver. Those facts do not bear repeating here. Additional facts
                                                                               supporting

the intent to deliver element are as follows.

         Sgt. fohn Allovio testified            at trial that based on his experience as a drug

enforcement officer, the amount of methamphetamine recovered from the
                                                                      black pouch

could be sold in 25 units with a total cash value of $250. Reviewing the contents
                                                                                  of

Sellers v. State
                                                                                                       Page 6
 Sellers's cell phone, Allovio identified messages, such as "r u still holding
                                                                               anything or r

 u   out    "   and     "I still got some," that were consistent with drug-dealing and were
 conveyed          in   cornmon drug culture language. Based on the amount         of   meth-

 amphetamine recovered, the scales, the individual dosage baggies,
                                                                   and the text
 messages, Allovio formed an opinion that the evidence was indicative
                                                                      of someone who

 would be selling narcotics. Further, Allovio testified that based on the totality of
                                                                                      the

 circumstances, he had no doubt that the black pouch and its contents
                                                                      belonged to

 Sellers.

 Application

           Although the black pouch was not recovered from Sellers, it was identified
                                                                                           as

being his pouch. Further, what was in the pouch, along with text messages
                                                                          retrieved

from Sellers's cell phone sufficientty indicated that Sellers intended to deliver the

methamphetamine.

Conclusion

           Accordingly, after considering all of the evidence in the light most favorable to

the verdicf we determine that, based on that evidence and reasonable inferences

therefrom, a rational jury could have found beyond a reasonable doubt that Sellers

knowingly possessed the methamphetamine with the intent to deliver it.

         Sellers's first issue is overruled.




Sellers v. State
                                                                                        PageT
 Deadly Weapon

          Sellers further contends the evidence was insufficient      to support the deadly
 weapon finding made by the     jury.   Specifically, Sellers contends that the evidence was

 insufficient to show that the knife was, in f.act, adeadly weapon.

          What constitutes a "deadly weapon" is determined by Section 1.07 of the Texas

 Penal Code. Tnx. PENA.L CODE ANN. S 1.07 (West 2011); Robertson a.
                                                                    State,163 S.W.3d

 730, 732 (Tex. Crim. App. 2005).       A deadly weapon includes        anything manifestly

 designed, made, or adapted for the purpose of inflicting death or serious bodily
                                                                                  injury,

 or anything that in the manner of its use or intended use is   capable   of causing death or

 serious bodily injury. Id. $1'.07(a)(17XA), (B) (emphasis added). "serious bodily
                                                                                   injury,,

means bodily injury that creates a substantial risk of death or that causes
                                                                            deatlu serious

Permanent disfigurement,      or protracted loss or impairment of the function of        any

bodily member or organ. Id. g1..07(aX46).

         Whether any particular knife is a deadly weapon by design or usage or not         a

deadly weaPon at all depends on the evidence. Thomas a. State, g2l, 5.W.2d,6'1.6,
                                                                                         G20

(Tex. Crim. APp. 1991). The plain language of the statute does not require
                                                                           the actor to

actually intend death or serious bodily injury; an object is a deadly weapon if the actor

intends a use of the object in which it would be capable of causing death or serious

bodily    i.jrry.   McCain a. state, 22 s.w.3d 497, s}B (Tex.     crim. App.     2000). The

placement of the word "capable" in the provision enables the statute to cover conduct


Sellers v. State
                                                                                      Page 8
 that threatens deadly force, even if the actor has no intention of actually using
                                                                                   deadly

  force. Id.

           Expert or lay testimony may be sufficient to support a deadly-weapon
                                                                                finding,

 and police officers can be expert witnesses with respect to whether
                                                                     a deadly weapon

 was used. Tucker a. state, 274s.w.3d 688, 692 (Tex. Crim. App. 200g).
                                                                       Furthermore, the

 blade need not actually have caused any injuries for           it to be considered a deadlv
 weapon. Id. at697.

          The knife at issue was not introduced into evidence. It was, however,
                                                                                described

 as   part of a multi-tool instrument that contained other utensils, such as a screwdriver

 and pliers, as well as the knife. Further, when the knife blade was out, it
                                                                             was locked in

 place. To put the knife blade away would require the blade to be unlocked.

          Officer Price first saw the knife when Sellers emerged from behind the car where

he had been        hiding. When    she saw what   it was, she asked Sellers to put it down and

step away from       it.   Price was concerned about the knife because she did not want to
                                                                                           be

stabbed. Price was by herself and was concerned that Sellers, seeing a uniformed

officer, would still emerge from his hiding place carrying a blade. price agreed that,
                                                                                       in
the manner of its intended use, the knife could have caused serious bodily      irjury.

         On the video of the encounter between Sellers and Price, Sellers could be seen

coming out from behind a vehicle with something in his right hand as soon as price

stopped her patrol         unit. He continued to approach her until they were about 5 feet

Sellers v. State
                                                                                          Page 9
 apart. When Price asked to       see what was    in Seller's hand, he showed her the blade

 which appeared to be about 4 inches long. After Seller's put the knife dowry
                                                                              he backed

 away a few more feet from price.

          After considering att of the evidence in the light most favorable to the verdict,
                                                                                            we

 determine tha! based on that evidence and reasonable inferences therefrom,
                                                                            a rational

jury could have found beyond       a reasonable   doubt that the knife, at the very least, was   a

deadly weapon by the manner of its use or intended use.

         Sellers's second issue is overruled.

CoNcrusloN

         Having overruled each of Sellers's issues presented on appeal, we affirm the trial

court's judgment.




                                            TOM GRAY
                                            Chief |ustice

Before Chief ]ustice Gray,
       ]ustice Davis, and
      Justice Scoggins
Affirmed
Opinion delivered and filed May7,2015
Do not publish
lcRPMl




Sellers v. State                                                                        Page 10
