                                                                                      ACCEPTED
                                                                                 01-14-00877-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            3/25/2015 3:50:21 PM
                                                                             CHRISTOPHER PRINE
                                                                                          CLERK

                       Appeal No. 01-14-00877-CR
                 ___________________________________
                                                                FILED IN
                                                         1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                      In The First Court Of Appeals      3/25/2015 3:50:21 PM
                                                         CHRISTOPHER A. PRINE
                                                                 Clerk
                 ___________________________________


                FALLON NICOLE WAGNER, Appellant

                                   Vs.

                   THE STATE OF TEXAS, Appellee.

                 ___________________________________

             On Appeal from the 149th Judicial District Court
                       of Brazoria County, Texas
                         Cause Number 73035.
                ___________________________________


        BRIEF FOR APPELLANT, FALLON NICOLE WAGNER

                 ___________________________________


Oral Argument Requested

                                  Cary M. Faden
                                  77 Sugar Creek Center Blvd., Suite 230
                                  Sugar Land, Texas 77478
                                  Telephone: (281) 491-6182
                                  Facsimile: (281) 491-0049
                                  Texas Bar No. 06768725
                                  E-MAIL: caryfaden@aol.com
                                  Attorney for Appellant
                    IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P., Rule 38.1(a), appellant certifies that the following

is a complete list of the parties to the final judgment and the names and addresses of

counsel in the trial and on appeal:

Appellant:

Fallon Nicole Wagner

Counsel for Appellant:

Lawrence H. Packard, III (at trial)
P. O. Box 1537
Lake Jackson, Texas 77566

Cary M. Faden (on appeal)
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478

Counsel for the State of Texas:

Jeri Yenne
Brian J. Hrach
Brazoria County, Texas
District Attorney
111 East Street, Suite 408A
Angleton, Texas 77515

Trial Judge:

Terri T. Holder




                                          ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.................................................................ii

TABLE OF CONTENTS...............................................................................................iii

INDEX OF AUTHORITIES.........................................................................................iv

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

ISSUES PRESENTED....................................................................................................3

STATEMENT OF FACTS.............................................................................................4

SUMMARY OF THE ARGUMENT...........................................................................11

ARGUMENT................................................................................................................12

POINT OF ERROR ONE.............................................................................................12

                  THE EVIDENCE ADDUCED AT TRIAL WAS
                  LEGALLY INSUFFICIENT.

PRAYER FOR RELIEF................................................................................................21

CERTIFICATE OF SERVICE.....................................................................................23




                                                           iii
                                            INDEX OF AUTHORITIES

Cases:

Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) (plurality
op.)............................................................................................................11,12,13,20,21

Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995)............................................14

Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001).....................................11

Chavez v. State, 769 S.W.2d 284 (Tex. App. - Houston [lst Dist.] 1989, pet.
ref'd)...............................................................................................................................15

Dewberry v. State, 4 S.W.3d 735,740 (Tex. Crim. App.1999)....................................13

Green v. State, 892 S.W.2d 220 (Tex. App. - Texarkana 1995, pet. ref'd).............14,15

Herndon v. State, 787 S.W.2d 408 (Tex. Crim. App. 1990)........................................15

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781........................................11,12,13,20

McMillon v. State, 940 S.W.2d 767 (Tex. App. - Houston [14th Dist.] 1997, pet.
ref'd)...............................................................................................................................14

McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989).......................................15

Sharp v. State, 707 S.W.2d 611,614 (Tex. Crim. App.1986).......................................13

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)...........................12,14




                                                                  iv
Rules, Statutes, Codes:

Tex. Health & Safety Code , section 481.115..............................................................14

Tex. R. App. Proc., Rule 38.1.........................................................................................ii




                                                           v
                         Appeal No. 01-14-00877-CR
                   ___________________________________


                        In The First Court Of Appeals

                   ___________________________________


                  FALLON NICOLE WAGNER, Appellant

                                       Vs.

                      THE STATE OF TEXAS, Appellee.

                   ___________________________________

              On Appeal from the 149th Judicial District Court
                        of Brazoria County, Texas
                          Cause Number 73035.
                 ___________________________________

         BRIEF FOR APPELLANT, FALLON NICOLE WAGNER

To The Honorable Justices of the First Court of Appeals:

      Comes now appellant, Fallon Nicole Wagner, by and through her attorney of

record, Cary M. Faden, and files this her brief to set aside the October 22, 2014,

judgment of the 149th Judicial District Court of Brazoria County, Texas in Cause

Numbers 73035, and would respectfully show the Court:

                         STATEMENT OF THE CASE

      On April 17, 2014, Appellant, was indicted for the state jail degree felony

                                        1
offense of Possession Of A Controlled Substance-Enhanced; (1 CR at 5). The offense

was alleged to have occurred on or about February 26, 2014. (1 CR at 5). On October

20, 2014, Appellant pleaded not guilty to the indictment. (3 RR at 4). After a jury

trial, the jury assessed Appellant’s punishment at confinement in the Texas

Department of Criminal Justice-Institutional Division for a period of eight years

Texas Department of Criminal Justice-Institutional Division, with a $1,000.00 fine.

(2 CR at 4). On October 28, 2014, Appellant timely filed her notice of appeal. (1 CR

at 60).




                                         2
         ISSUES PRESENTED

        POINT OF ERROR ONE

THE EVIDENCE ADDUCED AT TRIAL WAS
LEGALLY INSUFFICIENT.




                3
                            STATEMENT OF FACTS

      On April 17, 2014, Appellant was indicted in the 149th Judicial District Court

in cause number 73035. That indictment alleged that, on or about February 26, 2014,

in Brazoria County, Appellant did:

      then and there intentionally or knowingly possess a controlled substance
      listed in Penalty Group One (1), namely, methamphetamine, and the
      amount of said controlled substance was, by aggregate weight, including
      any adulterants and dilutants, less than one (1) gram;

                       ENHANCEMENT PARAGRAPHS

      AND THE GRAND JURORS AFORESAID do further present that
      before the commission of the offense alleged above, on or about the 31st
      day of August, 2006, in Cause number 50878, in the 23rd Judicial
      District Court of Brazoria County, Texas, the defendant was convicted
      of the felony of Possession of a controlled substance;

      AND THE GRAND JURORS AFORESAID do further present that
      before the commission of the offense alleged above, on or about the 28th
      day of June, 2010, in Cause Number 1182164, in the 179th S.T.A.R.
      District Court of Harris County, Texas, the defendant was convicted of
      the felony of Possession of a Controlled Substance.
      (1 CR at 5).

      A venire of approximately sixty (60) persons, was subjected to voir dire

examination. (4 RR at 12-151). The jury of twelve (12) was selected and seated, with

no further objection. (4 RR at 147). The jury was sworn. (4 RR at 147). Appellant was

arraigned on the indictment and entered a plea of not guilty. (3 RR at 4).

      At trial, the State called Eric C. Edwards, working for Manvel Police

                                          4
Department, as a night-shift patrol officer. On February 26, 2014, around the time of

1:42 a.m., his attention gravitated towards a vehicle with hazard lights on in a moving

lane of traffic, the inside lane. He was traveling southbound. It was a silver Ford

Focus. It was in the inside lane closest to the median. He stopped and then initiated

his emergency back lights and directional lights. When he does not turn on the full

range of lights, his camera does not activate. The camera was not activated. He made

entry to the front, the front driver's side of the vehicle. It was more of a welfare

concern. He approached the vehicle and made contact with the defendant. He noticed

her head was slumped over as if she may have been asleep. So he gently knocked on

the window to get her attention; and once she rolled the window down, he could smell

a odor of alcohol emanate outside of the vehicle. She responded she was coming from

Houston. She just said she was at a club in Houston with a friend. She planned on

going to Katy, Texas. Katy, Texas, is nowhere close to 288 southbound. He claimed

she was possibly an intoxicated or inebriated person. This time he asked the

defendant how much have she had to drink. She advised that she had two drinks. Her

movement was somewhat exaggerated. She tried to get to her purse. She didn't seem

to know where anything was at. She also seemed to be a little bit confused and

disoriented about what was going on. He noticed glossy and bloodshot eyes. He

noticed every time she talked her speech was very slurred. He asked her could she

                                          5
step out of the motor vehicle. She just couldn't find her shoes and she eventually

found one shoe in the front of the vehicle; and as she exited, she found a second one,

he found a second one as she was searching behind the driver's seat. He did field

sobriety tasks, called them standardized field sobriety tests, which consist of three

different tests. One test is called a Horizontal Gaze Nystagmus, where we check eyes

for any impairment of intoxication. Another test that determines your physical and

mental capacities. It's called a Walk-and-Turn, where we give you instructions and

we ask you to follow those instructions and then you walk. The second test is called

a One-Leg Stand, where we're asking, we're asking the person to stand on one leg, the

leg that's, they are most comfortable with and we ask them to count until we tell them

to stop counting. She did not perform the tasks well in his opinion, he felt she was a

poly drug user, a combination of alcohol and maybe another substance that he

couldn't determine. He claimed he could smell alcohol coming off of her body. After

he claimed her failure of the sobriety tests, he asked the defendant to put her hands

behind her back, handcuffed her and advised her she was going to be arrested for

driving while intoxicated. Upon inventorying the vehicle, he searched the front. He

went through the back and kind of came at a angle and saw this silver gift box. And

opened the gift box to see if there's anything that's of monetary value and discovered

some very small crystal-like substance that was in there, rock-like substance, which

                                          6
eventually was tested to be methamphetamines from a test kit. It was in a transparent,

small baggie. There was a purple E&J package. E&J comes with a purple bag; and

inside that bag, he located some contraband. One looked like a smoking pipe and the

other thing was, it had some pills in it. Because we found what we thought at the time

could be drugs, when we found the crystal substance. Inside the purse, there was

found some pills. Quetiapine, which is a antipsychotic drug. Found near the front

seat, passenger floorboard was a bottle filled with E&J brandy. (4 RR at 161-190).

      VOIR DIRE EXAMINATION BY MR. PACKARD: the witness testified that

he bagged these as evidence, and when we say "bagged," that means you put them in

bags. Once they were bagged and labeled, when they were labeled and bagged, he

placed them into the Manvel vault. MR. PACKARD: All right. Your Honor, I'm

going to object on the grounds, one, of relevancy; two, that Officer Edwards doesn't

have the personal knowledge required to have these admitted into evidence. In other

words, the proper predicate hasn't been laid. MR. HRACH: He testified, Your Honor,

that those were the same items that he took into custody that are here today, marked,

bagged by that department; and we have established the beginning and end of the

chain of custody to the courtroom. THE COURT: Okay. I'm going to sustain the

objection for now until you put on some more chain of custody. THE COURT: So for

purposes of where we are right now in the testimony, I'll sustain that objection. (4 RR

                                          7
at 190-196).

       Direct examination continued, at the Manvel Jail, already having testing the

subject, it was positive for crystal meth. He decided to at least go inside of the jail cell

and ask the subject what was the contents in the little plastic baggie, and she had told

him it was crystal meth. (4 RR at 203-210).

       Cross examination, he testified that when he first stopped Ms. Wagner it was

in an active traffic lane in the highway but it wasn't videoing in his patrol car. The

vehicle as maybe a vehicle that was stalled or stranded. So for safety purposes he

activated his directional, yellow lights on the vehicle. When he activated those, it did

not activate the camera; and it also activated my back lights on the back of my

vehicle. Only when he activate it's a toggle switch, activate it on fully then the lights

and the camera activates. (44 RR at 210-229). Cross examination continued, the

vehicle Appellant was found was not registered to Fallon Wagner. (5 RR at 6-21).

       The State called Paul Van Dorn, he works for the Brazoria County Sheriff's

Office Crime Laboratory as the laboratory director/lead chemist there. In this case he

did two presumptive tests. One was a microcrystalline test. One was an odor test. In

this case those crystals appeared to be methamphetamine crystals. The confirmatory

testing we normally do is gas chromatography-mass spectroscopy[sic], or GC-MS for

short. That gives us an ion fragmentation pattern or spectra, if you will, that we can

                                             8
compare to library spectra to determine if what we have is a match for a compound

that's in our libraries. He looked at evidence submission bag containing a Ziploc --

approximately 1 inch by 1 inch Ziploc, clear, plastic bag. It's labeled No. 4; my

initials, PVD; the date, 10/16/14 was when I removed it and did my analysis. On the

front of the bag, it has the Manvel Police Department sticker. It also as a bar code on

there that our laboratory placed on there indicating which laboratory number we

assigned it when we received it, and that laboratory number is BCCL-14-0569. State's

Exhibit No. 6, the material inside the approximately 1-inch Ziploc Baggie weighed

.0832 grams when he removed that from that Baggie; and my confirmation testing

indicated a presence of methamphetamine. (5 RR at 22-31).

      Cross examination of Van Dorn, who said .08 whatever, that's eight hundredths

of a gram. In his opinion it's methamphetamine, and his report says it was .0832

grams. (5 RR at 31-39). The State rested. (5 RR at 41).

      Appellant re-called Eric C. Edwards, who identified drug paraphernalia, also

known as smoking pipes. The street name normally is crack pipes, but it's some pipes

used to smoke any type of drug, like crack cocaine, methamphetamines. You put the

Brillo Pad in. You can put the meth on top. You take a cigarette lighter from the

bottom. You flick it on and you burn it and you start to blow out. (5 RR at 46-52).

      Cross examination, he was shown the pipe. Edwards was asked in your

                                          9
knowledge or opinion of those three things that are up there, the crack pipe; and what

you're now saying a bowl, calling that a marijuana pipe; and the diagram that was

introduced to you, call the only meth pipe. Appellant rested. (5 RR at 71). The State

and Appellant both rested and closed. (5 RR at 71). A charge conference was held on

the record as to the charge on guilt/innocence, wherein the State had the suggestion

for the voluntary intoxication charge, Appellant made the objection that the voluntary

intoxication charge was not required, the Court sustained said objection. (5 RR at 71-

72). Appellant was found guilty by the jury. (5 RR at 100).

      At punishment the State called Marcey Farley, who was called to authenticate

Appellant’s prior felony convictions. (5 RR at 109-124). The State rested as to

punishment. (5 RR at 124).

      Appellant called Linda Wagner, who provided character evidence. (5 RR at

129-142). Appellant rested as to punishment. (5 RR at 142).




                                         10
                       SUMMARY OF THE ARGUMENT

Point of Error One:

      The evidence adduced was insufficient to find that Appellant committed the

offense of possession of a controlled substance. Thus, there was a reasonable doubt

as to whether Appellant was guilty of possession of a controlled substance, and the

evidence was insufficient to find Appellant guilty. Applying, Brooks v. State, 323

S.W.3d 893,894-95 (Tex. Crim. App. 2010) (plurality op.); id. at 926 (Cochran, J.,

concurring). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781. Burden v. State, 55

S.W.3d 608, 612 (Tex. Crim. App. 2001).




                                        11
                                   ARGUMENT

                   APPELLANT’S POINT OF ERROR ONE:

      THE EVIDENCE ADDUCED AT TRIAL WAS LEGALLY
      INSUFFICIENT.

Sufficiency

        In this issue, Appellant challenges the legal sufficiency of the evidence to

support his convictions. The Court of Criminal Appeals has held that only one

standard should be used in a criminal case to evaluate the sufficiency of the evidence

to support findings that must be established beyond a reasonable doubt: legal

sufficiency. Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010)

(plurality op.); id. at 926 (Cochran, J., concurring). Accordingly, the review of the

sufficiency of the evidence in this case is under a rigorous and proper application of

the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979). Brooks,

323 S.W.3d at 906. When reviewing the sufficiency of the evidence, it is proper to

view all of the evidence in the light most favorable to the verdict to determine

whether the fact finder was rationally justified in finding guilt beyond a reasonable

doubt. Brooks, 323 S.W.3d at 899; Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). This court will not sit as a thirteenth juror and may not substitute

its judgment for that of the fact finder by re-evaluating the weight and credibility of

the evidence. Brooks, 323 S.W.3d at 901-02. This Court will defer to the fact finder's

                                          12
resolution of conflicting evidence unless the resolution is not rational. Brooks, 323

S.W.3d at 902 n.19, 907. Appellant argues the evidence is legally insufficient to

support his conviction. The Court of Criminal Appeals has held that only one

standard should be used to evaluate the sufficiency of the evidence in a criminal case:

legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App.2010)

(plurality opinion); id. at 926 (Cochran, J., concurring). Accordingly, the review of

the sufficiency of the evidence in this case under a proper application of the Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), legal sufficiency

standard. Brooks, 323 S.W.3d at 905 (plurality opinion).

Standard of Review

      When reviewing the sufficiency of the evidence, the view is to all of the

evidence in the light most favorable to the verdict to determine whether the jury was

rationally justified in finding guilt beyond a reasonable doubt. Id. at 898. This court

will not sit as a thirteenth juror and may not substitute its judgment for that of the fact

finder by reevaluating the weight and credibility of the evidence. Id. at 901;

Dewberry v. State, 4 S.W.3d 735,740 (Tex. Crim. App.1999); see also Sharp v. State,

707 S.W.2d 611,614 (Tex. Crim. App.1986) (stating the jury may choose to believe

or disbelieve any portion of the testimony at trial). The duty as a reviewing court is

to ensure that the evidence presented actually supports a conclusion that the

                                            13
defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App.2007).

Possession Of A Controlled Substance.

Tex. Health & Safety Code , section 481.115.

          To support a conviction for possession of a controlled substance, the State must

show that the accused exercised actual care, custody, or control over the substance,

that she was conscious of her connection with it, and that he possessed the substance

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

The State must establish that the accused's connection with the substance was more

than just fortuitous. When the contraband is not found on the accused's person or it

is not in his exclusive possession, additional facts must affirmatively link him to the

contraband. McMillon v. State, 940 S.W.2d 767 (Tex. App. - Houston [14th Dist.]

1997, pet. ref'd); Green v. State, 892 S.W.2d 220 (Tex. App. - Texarkana 1995, pet.

ref'd).

          The factors to be considered in determining whether an affirmative link exists

are: (1) the defendant's presence when the search warrant was executed; (2) whether

the contraband was in plain view; (3) the defendant's proximity to and the

accessibility of the narcotic; (4) whether the defendant was under the influence of

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

                                             14
narcotics when arrested; (6) whether the defendant made incriminating statements

when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant

made furtive gestures; (9) whether there was an odor of contraband; (10) whether

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

had the right to possess the place where the drugs were found; and (12) whether the

place the drugs were found was enclosed. Green v. State, 892 S.W.2d at 220 (Tex.

App. Texarkana 1995, pet. ref’d); Chavez v. State, 769 S.W.2d 284 (Tex. App. -

Houston [lst Dist.] 1989, pet. ref'd).

      Appellant argues that the evidence is insufficient to prove that she had care,

custody, or control over the contraband or that he had knowledge of its presence. She

points out that mere presence, by itself, at the scene of the search or in the said

automobile is not enough to support a conviction for possession of a controlled

substance. Herndon v. State, 787 S.W.2d 408 (Tex. Crim. App. 1990). Further,

Appellant argues that other people had access to the automobile where the controlled

substance was found, and that the only evidence linking her to the contraband is the

container or silver gift box found in the automobile where the controlled substance

was found.

      In McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989), the Court Of

Criminal Appeals stated that analysis of criminal conduct varies according to the

                                         15
"conduct elements" of the offense. Specifically, the Texas Penal Code, Sec. 6.03

delineates three "conduct elements" which may be involved in an offense: (1) the

nature of the conduct; (2) the result of the conduct; and (3) the circumstances

surrounding the conduct. Any offense may contain any one or more of these "conduct

elements" which alone or in combination form the overall behavior which the

Legislature has intended to criminalize, and it is those essential "conduct elements"

to which a culpable mental state must apply.

      Appellant’s contentions indicate that the evidence does not show several

affirmative links between her and the substance. First, she was in the automobile and

at the place searched at the time of the search. There was no evidence admitted

showing Appellant was the owner of the automobile in which the controlled

substance was found nor proven by the State. The controlled substance was allegedly

found at or near Appellant’s person, never proven by the State. Appellant argues the

State’s argument hinges on the allegation that Appellant had the controlled substance

at or near his person at the time of the search. There was no evidence presented that

Appellant had access to the controlled substance and sole control over the automobile

as its operator but not owner. Thus, this Court can not find adequate affirmative links

between Appellant and the controlled substance, and thus the evidence is legally

insufficient to support her conviction.

                                          16
      At trial Eric C. Edwards, working for Manvel Police Department, as a night-

shift patrol officer testified, on February 26, 2014, around the time of 1:42 a.m., his

attention gravitated towards a vehicle with hazard lights on in a moving lane of

traffic, the inside lane. He was traveling southbound. It was a silver Ford Focus. It

was in the inside lane closest to the median. He stopped and then initiated his

emergency back lights and directional lights. When he does not turn on the full range

of lights, his camera does not activate. The camera was not activated. He made entry

to the front, the front driver's side of the vehicle. It was more of a welfare concern.

He approached the vehicle and made contact with the defendant. He noticed her head

was slumped over as if she may have been asleep. So he gently knocked on the

window to get her attention; and once she rolled the window down, he could smell

a odor of alcohol emanate outside of the vehicle. She responded she was coming from

Houston. She just said she was at a club in Houston with a friend. She planned on

going to Katy, Texas. Katy, Texas, is nowhere close to Katy, 288 southbound. He

claimed she was possibly an intoxicated or inebriated person. This time he asked the

defendant how much have she had to drink. She advised that she had two drinks. Her

movement was somewhat exaggerated. She tried to get to her purse. She didn't seem

to know where anything was at. She also seemed to be a little bit confused and

disoriented about what was going on. He noticed glossy and bloodshot eyes. He

                                          17
noticed every time she talked her speech was very slurred. He asked her could she

step out of the motor vehicle. She just couldn't find her shoes and she eventually

found one shoe in the front of the vehicle; and as she exited, she found a second one,

he found a second one as she was searching behind the driver's seat. He did field

sobriety tasks, called them standardized field sobriety tests, which consist of three

different tests. One test is called a Horizontal Gaze Nystagmus, where we check eyes

for any impairment of intoxication. Another test that determines your physical and

mental capacities. It's called a Walk-and-Turn, where we give you instructions and

we ask you to follow those instructions and then you walk. The second test is called

a One-Leg Stand, where we're asking, we're asking the person to stand on one leg, the

leg that's, they are most comfortable with and we ask them to count until we tell them

to stop counting. She did not perform the tasks well in his opinion, he felt she was a

poly drug user, a combination of alcohol and maybe another substance that he

couldn't determine. He claimed he could smell alcohol coming off of her body. After

he claimed her failure of the sobriety tests, he asked the defendant to put her hands

behind her back, handcuffed her and advised her she was going to be arrested for

driving while intoxicated. Upon inventorying the vehicle, he searched the front. He

went through the back and kind of came at a angle and saw this silver gift box. And

opened the gift box to see if there's anything that's of monetary value and discovered

                                         18
some very small crystal-like substance that was in there, rock-like substance, which

eventually was tested to be methamphetamines from a test kit. It was in a transparent,

small baggie. There was a purple E&J package. E&J comes with a purple bag; and

inside that bag, he located some contraband. One looked like a smoking pipe and the

other thing was, it had some pills in it. Because we found what we thought at the time

could be drugs, when we found the crystal substance. Inside the purse, there was

found some pills. Quetiapine, which is a antipsychotic drug. Found near the front

seat, passenger floorboard was a bottle filled with E&J brandy. (4 RR at 161-190).

      VOIR DIRE EXAMINATION BY MR. PACKARD: the witness testified that

he bagged these as evidence, and when we say "bagged," that means you put them in

bags. Once they were bagged and labeled, when they were labeled and bagged, he

placed them into the Manvel vault. MR. PACKARD: All right. Your Honor, I'm

going to object on the grounds, one, of relevancy; two, that Officer Edwards doesn't

have the personal knowledge required to have these admitted into evidence. In other

words, the proper predicate hasn't been laid. MR. HRACH: He testified, Your Honor,

that those were the same items that he took into custody that are here today, marked,

bagged by that department; and we have established the beginning and end of the

chain of custody to the courtroom. THE COURT: Okay. I'm going to sustain the

objection for now until you put on some more chain of custody. THE COURT: So for

                                         19
purposes of where we are right now in the testimony, I'll sustain that objection. (4 RR

at 190-196).

       Direct examination continued, at the Manvel Jail, already having testing the

subject, it was positive for crystal meth. He decided to at least go inside of the jail cell

and ask the subject what was the contents in the little plastic baggie, and she had told

him it was crystal meth. (4 RR at 203-210).

       Cross examination, he testified that when he first stopped Ms. Wagner it was

in an active traffic lane in the highway but it wasn't videoing in his patrol car. The

vehicle as maybe a vehicle that was stalled or stranded. So for safety purposes he

activated his directional, yellow lights on the vehicle. When he activated those, it did

not activate the camera; and it also activated my back lights on the back of my

vehicle. Only when he activate it's a toggle switch, activate it on fully then the lights

and the camera activates. (44 RR at 210-229). Cross examination continued, the

vehicle Appellant was found was not registered to Fallon Wagner. (5 RR at 6-21).

       Again, the Texas Court of Criminal Appeals determined that the Jackson v.

Virginia standard is the only standard a reviewing court should apply to determine

whether the evidence is sufficient to support each element of a criminal offense the

State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 894 (Tex. Crim. App. 2010) (plurality op.). Accordingly, under current Texas

                                            20
law, in reviewing Appellant's issues the Court will apply the Jackson v. Virginia

standard and do not separately refer to legal or factual sufficiency.

      All of the evidence is viewed in the light most favorable to the verdict to

determine whether the jury was rationally justified in finding guilt beyond a

reasonable doubt, Brooks, 323 S.W.3d at 902. The Court will defer to the fact finder's

resolution of conflicting evidence unless the resolution is not rational. Brooks, 323

S.W.3d at 907. Under the review of the evidence required by Brooks, even in the light

most favorable to the verdict, a rational jury could not conclude that this evidence is

such as to permit it to find beyond a reasonable doubt that Appellant did then and

there intentionally or knowingly possess a controlled substance listed in Penalty

Group One (1), namely, methamphetamine, and the amount of said controlled

substance was, by aggregate weight, including any adulterants and dilutants, less than

one (1) gram. The conviction should be reversed and this Court should render a

judgment of acquittal.

                               PRAYER FOR RELIEF

           WHEREFORE, PREMISES CONSIDERED, Appellant, Fallon Nicole

Wagner, prays that this Court would reverse Appellant’s conviction, remand the

matter to the trial court for a new trial. Further, Appellant prays for any and all other

relief to which Appellant may be entitled in law and equity.

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                                      Respectfully submitted,

                                      /S/CARY M. FADEN
                                      Cary M. Faden
                                       77 Sugar Creek Center Blvd., Suite 230
                                      Sugar Land, Texas 77478
                                      Telephone: (281) 491-6182
                                      Facsimile: (281) 491-0049
                                      Texas Bar No. 06768725
                                      E-MAIL: caryfaden@aol.com

                                      Attorney For Appellant



        CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)

      In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this

is a computer generated document and I state that the number of words in this

document is approximately 5,138 words. I am relying on the word count of the

computer program used to prepare this document.

                                      /S/CARY M. FADEN
                                      Cary M. Faden




                                        22
                           CERTIFICATE OF SERVICE

        In accordance with TEX. R. APP. P. 9.5, I Cary M. Faden, certify that a true

and correct copy of the foregoing brief for appellant has been served, by hand

delivery, and/or by U.S. Mail, and/or by facsimile transmittal, to Fallon Nicole

Wagner, to the attorney for the State Of Texas, Jeri Yenne, District Attorney, 111

East Locust Street, Room 408A, Angleton, Texas 77515, on this 27th day of March,

2015.

                                       /S/CARY M. FADEN
                                       Cary M. Faden




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