                                                                                       ACCEPTED
                                                                                   02-15-00115-CR
                                                                       SECOND COURT OF APPEALS
                                                                             FORT WORTH, TEXAS
                                                                              7/30/2015 5:44:30 PM
                                                                                    DEBRA SPISAK
                                                                                            CLERK

                                                   Oral argument not requested.

                                                                  FILED IN
                                                           2nd COURT OF APPEALS
                              No. 02-15-00115-CR            FORT WORTH, TEXAS
                                                           7/30/2015 5:44:30 PM
                                                                DEBRA SPISAK
                           IN THE COURT OF APPEALS                 Clerk
                      FOR THE SECOND DISTRICT OF TEXAS
                                 FORT WORTH



                           SHIRLEY JEAN JOHNSON
                                            Appellant,
                                     V.

                            THE STATE OF TEXAS,
                                            Appellee.



                            Brief for Appellant


                                         Jeff Springer
                                         State Bar No. 18966750
                                         SPRINGER & LYLE, LLP
                                         1807 Westminster
                                         Denton, TX 76205
                                         940.387.0404 (ph)
                                         940.383.7656 (fax)
                                         jeff@springer-lyle.com

                                         Attorney for Appellant




BRIEF FOR APPELLANT                                                  PAGE 1 OF 17
                          Identity of Parties and Counsel

Shirley Jean (Bell) Johnson
3302 E 2120 Road                                    Appellant (Defendant below)
Hugo, OK 74743

Mr. Paul Belew
Tex. Bar No. 00794926
105 State Street                                    Attorney for Johnson below
P.O. Box 1026
Decatur, TX 76234

Mr. Jeff Springer, Esq.
Texas Bar No. 18966750
1807 Westminster                                    Attorney for Johnson on
Denton, TX 76205                                    appeal
940.387.0404 (ph.)
940.383.7656 (fax)

The State of Texas                                  Appellee (the State below)

Mr. Greg Lowery, Esq.
Texas Bar No. 00787926
Wise Co. Dist. Attorney
Mr. Jay Lapham, Esq.
                                                    Attorney for the State
Texas Bar No. 00784448
Wise Co. Ass’t Dist. Attorney
County Courthouse, Suite 200
Decatur, Texas 76234
                                                    	




BRIEF FOR APPELLANT                                                     PAGE 2 OF 17
                                                        Table of Contents
Identity of Parties and Counsel ....................................................................................................... 2 
Table of Contents ............................................................................................................................ 3 
Index of Authorities ........................................................................................................................ 4 
Statement of the Case...................................................................................................................... 5 
Statement Regarding Oral Argument.............................................................................................. 5 
Issues Presented .............................................................................................................................. 5 
Issue Number One:
Was the evidence legally sufficient to prove the existence of
an agreement, which is an essential element of the offense? .......................................................... 5 
Statement of Facts ........................................................................................................................... 5 
Summary of the Argument.............................................................................................................. 7 
Argument and Authorities............................................................................................................... 7 
Issue Number One (Restated):
Was the evidence legally sufficient to prove the existence of
an agreement, which is an essential element of the offense? .......................................................... 7 
   (A)        Standard of Review .......................................................................................................... 8 
       (1)       Elements of Conspiracy to Possess a Controlled Substance ........................................ 8 
       (2)       Legal Sufficiency Standard of Review ......................................................................... 9 
   (B)        The Evidence is Legally Insufficient ............................................................................... 9 
       (1)       The text messages do not evidence an agreement. ..................................................... 10 
       (2)       There was legally insufficient evidence of the substance and amount. ...................... 11 
CONCLUSION ............................................................................................................................. 15 
CERTIFICATE OF SERVICE ..................................................................................................... 16 
CERTIFICATE OF COMPLIANCE ............................................................................................ 17 




BRIEF FOR APPELLANT                                                                                                             PAGE 3 OF 17
                                              Index of Authorities

Cases
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ................................9
Brown v. State, 576 S.W.2d 36, 42 (Tex. Cr. App.1979) ........................................14
Dean v. State, 449 S.W.3d 267, 268 (Tex. App.–Tyler 2014, no pet.) .....................9
Graham v. State, 201 S.W.3d 323, 327 (Tex. App.—Hous. [14th Dist.] 2006,
  pet. ref’d) ................................................................................................................8
Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007) ..............................13
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
  61 L.Ed.2d 560 (1979)............................................................................................9
McCann v. State, 606 S.W.2d 897, 898 (Tex. Crim. App. 1980) ............................14
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) ..........................8
Saldana v. State, 418 S.W.3d 722, 726 (Tex. App.–Amarillo 2013, no pet.). ..........9
Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006,
  77 L. Ed. 2d 637 (1983)........................................................................................15
Williams v. State, 646 S.W.2d 221, 222 (Tex. Crim. App.1983) ....................... 9, 14
Woods v. State, 801 S.W.2d 932, 943 (Tex. App.-- Austin 1990, pet. ref’d) ..........14


Statutes
Tex. Health & Safety Code Ann. § 481.002(49) .......................................................8
Tex. Health & Safety Code Ann. § 481.115(a), (c). (West) ......................................8
Tex. Penal Code Ann. § 15.02 (West) .......................................................................9




BRIEF FOR APPELLANT                                                                                            PAGE 4 OF 17
                               Statement of the Case

       Shirley Johnson was indicted for conspiracy to possess methamphetamine on

March 27, 2014. [CR 4]. On February 3, 2015, the trial court convened a jury trial

and she was found guilty. [1 RR 1; 2 RR 2 RR 148; CR 9, 14]. Johnson elected to

have the trial court assess punishment. [3 RR 1]. On March 19, 2015 the court

sentenced her to a two-year state jail term, suspended during five years of

community supervision. [3 RR 5; CR]. Johnson filed a notice of appeal on April

19, 2015. [CR 25].

                      Statement Regarding Oral Argument

       Appellant’s issues for review have been fully briefed and summarized in this

filing. For that reason, oral argument is not requested.

                                  Issues Presented

       Issue Number One: Was the evidence legally sufficient to prove the
       existence of an agreement, which is an essential element of the offense?

                                 Statement of Facts

       Sergeant Chad Lanier arrested a drug trafficker named “Josh Weber” in

2012 and confiscated his cell phone. [2 RR 8-84]. In the weeks that followed, he

used the cell phone as a tool to investigate persons who called it. Id. at 86. On

December 4, 2012, Weber’s phone received a text message from (940) 393-6739

asking, “are you working?” Id. at 85-6. Sergeant Lanier testified that the phrase

was understood in the drug trade to mean “are you selling drugs?” Id. at 89.

BRIEF FOR APPELLANT                                                      PAGE 5 OF 17
       Over the course of the next day and a half, Lanier exchanged several text

messages between Weber’s phone and the 6739 number, culminating in an order

for $100 worth of an unspecified substance. Id. Based on his understanding of

street customs and the way Josh Weber did business, he understood the order to be

for 1.25 grams of methamphetamine. [2 RR 90-91; 112-113].

       Lanier arranged a roadside meeting with the person texting him from the

6739 number. When he arrived at the site of the meeting he found Shirley Johnson

waiting in an automobile. Id. at 96-97, 99. Lanier found a Samsung phone with the

6739 number in the car with her. Id. He took her phone but no drugs were

exchanged. Id. at 127.

       Johnson was indicted almost two years later for conspiracy to possess a

controlled substance, a state jail felony. [CR 4]. She was convicted after a one-day

trial on February 3, 2015. [2 RR 1, 1-4]. The trial court sentenced her to two years

community supervision on March 19, 2015. [CR 21-23]. Johnson gave notice of

her intent to appeal on April 7, 2015. [CR 25].




BRIEF FOR APPELLANT                                                       PAGE 6 OF 17
                            Summary of the Argument

       Lanier testified that Johnson made an agreement with him via a series of text

messages between Josh Weber’s phone Johnson’s Samsung phone. None of the

text messages admitted identify a substance. The text messages from Johnson’s

Samsung phone do not confirm a price or an amount to be purchased. Lanier

attempted to confirm the agreement by texting “u want 1.5g for $100.” Johnson,

however, did not respond. As a result there was direct evidence of an agreement.

       Lanier tried to bridge the gap through his knowledge of Weber’s business

practices and his knowledge of “street talk.” However, no evidence was admitted

to prove that Johnson had any knowledge of Weber’s business practice or

understood street terms the same way Lanier did. Because insufficient facts were

offered to support the inferences, the jury could not infer that Johnson understood

the substance or the amount to be purchased. The evidence was therefore legally

insufficient to support her conviction.

                            Argument and Authorities

       Issue Number One (Restated): Was the evidence legally sufficient to
       prove the existence of an agreement, which is an essential element of the
       offense?

       Sergeant Lanier was the State’s only witness. He testified that in the early

morning hours of February 4, 2012, he received a text message that he later learned

came from the Samsung phone found in Johnson’s car. [2 RR 86]. Between that


BRIEF FOR APPELLANT                                                       PAGE 7 OF 17
time and the meeting with Johnson on February 5, he said several text messages

were exchanged, during which an agreement was made for him to sell 1.5 grams of

methamphetamine to Johnson for $100. [2 RR 90-91]. According to his testimony

the agreement was made through the exchange of text messages. Id.

(A)    Standard of Review

       (1)    Elements of Conspiracy to Possess a Controlled Substance

       Possession of more than one gram of methamphetamine “by aggregate

weight, including adulterants or dilutants,” is a felony. Tex. Health & Safety Code

Ann. § 481.115(a), (c). (West). “Possession” means (1) exercise of actual care,

custody, control, or management over the substance and (2) knowledge that the

substance is contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.

App. 2005). An adulterant or dilutant is “any material that increases the bulk or

quantity of a controlled substance, regardless of its effect on the chemical activity

of the controlled substance.” Tex. Health & Safety Code Ann. § 481.002(49);

Graham v. State, 201 S.W.3d 323, 327 (Tex. App.—Hous. [14th Dist.] 2006, pet. ref’d).

       To convict Johnson of criminal conspiracy to possess more than one gram of

methamphetamine, the State was required to prove that she agreed with Lanier to

possess more than a gram of methamphetamine and that she performed an overt act

in pursuance of that agreement. Williams v. State, 646 S.W.2d 221, 222 (Tex.

Crim. App.1983); Tex. Penal Code Ann. § 15.02 (West).


BRIEF FOR APPELLANT                                                        PAGE 8 OF 17
       (2)    Legal Sufficiency Standard of Review

       In assessing the sufficiency of the evidence, this Court reviews all the

evidence in the light most favorable to the verdict to determine whether a rational

trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). “[O]nly that evidence which is sufficient in character, weight, and amount

to justify a factfinder in concluding that every element of the offense has been

proven beyond a reasonable doubt is adequate to support a conviction.” Brooks,

323 S.W.3d at 917 (Cochran, J., concurring).

       When reviewing all of the evidence under the Jackson standard of review,

the ultimate question is whether the jury's finding of guilt was rational. Id. at 906–

07 n.26. If the Court determines the evidence insufficient to establish any element

of the offense, it must reverse and render a judgment of acquittal. Dean v. State,

449 S.W.3d 267, 268 (Tex. App.–Tyler 2014, no pet.) (citing Cuddy v. State, 107

S.W.3d 92, 95 (Tex. App.–Texarkana 2003, no pet.)); see Saldana v. State, 418

S.W.3d 722, 726 (Tex. App.–Amarillo 2013, no pet.).

(B)    The Evidence is Legally Insufficient

       To prove the existence of an agreement, the State offered the testimony of

Sergeant Lanier and photographs of some of the text messages he exchanged with


BRIEF FOR APPELLANT                                                        PAGE 9 OF 17
the Samsung phone. Lanier did not have Josh Weber’s cell phone when Johnson’s

jury trial convened in February of 2015, more than two years after the texts were

exchanged.1 As a result, no texts received on that phone were offered.

       Not all of the messages on the Samsung phone had been saved. Lanier

testified that the outbox in the phone was full, and that some of the outgoing texts

were not there when he photographed the phone. [2 RR 112]. This left a handful of

messages, most of which Lanier sent from Josh Weber’s phone.

       (1)    The text messages do not evidence an agreement.

       Thirteen messages from the Samsung were photographed. [4 RR Exhs. 2 &

3]. Three of those ask “are you working?” which Lanier said was common in the

drug trade for “are you selling drugs?” [2 RR 89]. The remaining messages involve

arranging the time and place for a meeting.

       Not a single message admitted identifies the substance requested.

       Among the messages admitted Lanier sent two from Weber’s phone in an

attempt to confirm specifics of the agreement.

       One asked, “how much?” See [4 RR Exh. 2]. The other was reads, “Text me

when u get there u want 1.5g for 100.” See [4 RR Exh. 3]. There was no reply to

either message.



1
 He testified that the phone was sent with Weber to Tarrant County, where he faced additional
charges. [2 RR 102].

BRIEF FOR APPELLANT                                                                PAGE 10 OF 17
       (2)    There was legally insufficient evidence of the substance and
              amount.

       In order to prove the elements of the offense, the prosecution was required to

prove not only that Johnson had agreed to purchase methamphetamine, but that she

also agreed to purchase more than a gram. Since none of the text messages from

the Samsung specified a particular substance or amount, the State attempted to

prove the agreement through inferences concerning Johnson’s intent.

       Sergeant Lanier discussed his basis for believing that the text exchange

amounted to an agreement to purchase 1.5 grams of methamphetamine. First, he

explained that he knew Weber to traffic in methamphetamines. [2RR 83-84]. He

then he professed knowledge of Weber’s business practices:

       Q. All right. All right. And how much was the request?
       A. 1.5 -- well, it was $100 worth of drugs, which in--
       it's in -- in the drug world would be anywhere from
       1.25 grams to 1.5 grams of methamphetamines.
       Q. All right. Were you familiar with the way Josh sold
       his drugs?
       A. Yes, sir, I was.
       Q. Okay. And how did he sell his drugs? If you -- if
       you were going to pay for $100 worth of
       methamphetamine, what were you going to get?
       A. 1.5 grams --
       Q. All right. And --
       A. -- counted in the bag. That's how much you'd get.
       Q. And so how much would -- would pertain -- or how
       much would allow for the -- for the bag?
       A. That particular bag would be .25 grams.
       Q. So the total weight, including the bag, would be
       1.5 grams?

BRIEF FOR APPELLANT                                                       PAGE 11 OF 17
       A. Yes.
       Q. And 1.25 grams of -- of product or methamphetamine?
       A. That is correct, sir.
       Q. And I -- I guess you are familiar with the fact
       that this -- methamphetamine a controlled substance?
       A. Yes, sir, it is.


[2 RR 90-91]. Later, he added that he could infer the substance and amount from

his understanding of “street terms:”

       Q. Do you -- do you recall who the first person was
       that brought up the 1.5 grams? Would that have been
       you or would that have been her?
       A. Well, the -- the message was she wanted $100 worth.
       Q. All right.
       A. And in street terms, that's -- that's what it
       represents.
       Q. Now, with regards to grams, it doesn't say
       methamphetamine in -- in -- in your text message,
       correct?
       A. No, sir, it does not.
       Q. And at any point do you know -- did -- did she ask
       you specifically for methamphetamine?
       A. No. That's a word cops use. That's not a word the
       bad guys use.
       Q. All right. So fair to say it was an understood
       amount -- quantity -- excuse me -- an understanding
       with regards to the -- the type of drug?
       A. Yes, sir.


[2 RR 112-13]. This testimony was probably sufficient to prove that Lanier had an

understanding of an agreement. It constitutes no evidence that Johnson understood

the agreement.



BRIEF FOR APPELLANT                                                   PAGE 12 OF 17
       Juries are permitted to draw multiple reasonable inferences, but each

inference must be supported by the evidence. Hooper v. State, 214 S.W.3d 9, 15-

16 (Tex. Crim. App. 2007). Juries are not permitted to come to conclusions based

on mere speculation. Id. They also cannot make inferences that are factually

unsupported or based on presumption. Id.

      [A]n inference is a conclusion reached by considering other facts and
      deducing a logical consequence from them. Speculation is mere
      theorizing or guessing about the possible meaning of facts and
      evidence presented. A conclusion reached by speculation may not be
      completely unreasonable, but it is not sufficiently based on facts or
      evidence to support a finding beyond a reasonable doubt.

Id. There were no facts admitted during the trial that would allow the jury to

conclude that Shirley Johnson understood the communications between the

Samsung and Weber’s cell phone to constitute an agreement to purchase 1.5 grams

of methamphetamine.

       In order for the jury to infer that Johnson was aware of the terms of the

agreement, the prosecution would have been required to fill the gap between

Lanier’s knowledge and Johnson’s. To do this, it needed to introduce facts proving

that, like Lanier, Johnson knew Josh Weber’s method of selling drugs, or that she

understood “street terms.” No evidence was offered to prove either. In fact, the

only evidence of Johnson’s experience with the drug trade was the fact that she had

never been convicted of anything. [2 RR 124, 130].



BRIEF FOR APPELLANT                                                     PAGE 13 OF 17
       The State was not required to prove all elements of a completed offense.

McCann, 606 S.W.2d at 898; Brown v. State, 576 S.W.2d 36, 42 (Tex. Cr.

App.1979); Woods v. State, 801 S.W.2d 932, 943 (Tex. App.-- Austin 1990, pet.

ref’d). However, the State was required to prove an agreement to commit the exact

offense alleged:

       Thus, one of the essential elements that must be proven is an
       agreement between the co-conspirators to commit the offense. The
       corpus delicti of conspiracy must contain a showing of agreement to
       commit a crime. Brown v. State, 576 S.W.2d 36 (Tex.Cr.App.1979)
       (on rehearing). Black's Law Dictionary defines agreement as follows:
              “A coming or knitting together of minds; ... the coming
              together in accord of two minds on a given proposition;
              ... a mutual assent to do a thing....”
       If an indictment alleges a conspiracy between only two individuals,
       but the evidence at trial shows that there was no actual, positive
       agreement to commit a crime, then the evidence is insufficient to
       support a conviction for conspiracy.

Williams v. State, 646 S.W.2d 221, 222 (Tex. Crim. App. 1983).

       In this case, the evidence was sufficient for the jury to infer that Sergeant

Lanier intended to sell 1.5 grams of methamphetamine. The evidence fell short of

proving that Johnson understood that to be the agreement. For that reason, the

evidence was legally insufficient to support her conviction.




BRIEF FOR APPELLANT                                                      PAGE 14 OF 17
                                 CONCLUSION

       For the reasons explained above, Johnson requests the Court to determine

that her conviction is based on legally insufficient evidence, reverse and render

judgment of acquittal. Johnson also requests general relief.


                                             Respectfully submitted,

                                             /s/ J. Jeffrey Springer
                                             J. Jeffrey Springer
                                             Texas Bar No. 18966750
                                             SPRINGER & LYLE, LLP
                                             1807 Westminster
                                             Denton, Texas 76205
                                             Tel: (940) 387-0404
                                             jeff@springer-lyle.com




BRIEF FOR APPELLANT                                                    PAGE 15 OF 17
                         CERTIFICATE OF SERVICE

              I certify that on July 30, 2015, I caused to be served the foregoing

instrument on the following counsel of record via the Court’s electronic case filing

system pursuant to Tex. R. App. P. 9.5:

Mr. Greg Preston Lowery, Esq.
Wise County District Attorney
101 North Trinity, Suite 200
Decatur, Texas 76234

                                             /s/ J. Jeffrey Springer
                                             J. Jeffrey Springer




BRIEF FOR APPELLANT                                                      PAGE 16 OF 17
                       CERTIFICATE OF COMPLIANCE

       In compliance with Tex. R. App. P. 9.4(i), I certify that this document contains

3,678 words. This document was created in Microsoft Word. The body is in

conventional 14 point text, and the footnotes are in conventional 12 point text. I have

relied on the Microsoft Word software and word-count generated by the software in

making this certificate.


                                              /s/ J. Jeffrey Springer
                                              J. Jeffrey Springer




BRIEF FOR APPELLANT                                                        PAGE 17 OF 17
