                                                                 ACCEPTED
                                                              01-14-00963-cr
                                                  FIRST COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                        6/22/2015 7:47:15 AM
                                                       CHRISTOPHER PRINE
     No. 01-14-00963-CR                                               CLERK



             In the
       Court of Appeals                     FILED IN
            For the                  1st COURT OF APPEALS
                                         HOUSTON, TEXAS
    First District of Texas
                                     6/22/2015 7:47:15 AM
          At Houston                 CHRISTOPHER A. PRINE
                                             Clerk
    

          No. 2396287
   In the 232nd District Court
    Of Harris County, Texas

    

  COURTNEY TYRON BRYANT
           Appellant
              V.
     THE STATE OF TEXAS
            Appellee
    
   STATE’S APPELLATE BRIEF
    

                        DEVON ANDERSON
                        District Attorney
                        Harris County, Texas

                        ALEXIS MITCHELL
                        Assistant District Attorney
                        Harris County, Texas

                       KIMBERLY APERAUCH STELTER
                       Assistant District Attorney
                       1201 Franklin, Suite 600
                       Houston, Texas 77002
                       Telephone: 713.755.5826
                       stelter_kimberly@dao.hctx.net
                       State Bar Number: 19141400

ORAL ARGUMENT NOT REQUESTED
                     STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant

requests oral argument.

                        IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a

complete list of the names of all interested parties is provided below.

      Counsel for the State:

            Devon Anderson  District Attorney of Harris County

            Kimberly Stelter  Assistant District Attorney on appeal

            Joshua Phanco  Assistant District Attorney at trial

      Appellant or criminal defendant:

            Courtney Tyrone Bryant

      Counsel for Appellant:

            Joseph W. Varela  Defense Counsel on appeal

            Todd Overstreet  Defense Counsel at trial

      Trial Judge:

            Honorable Lee Duggan  Judge Presiding




                                         i
                                            TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ........................................................i

IDENTIFICATION OF THE PARTIES .........................................................................i

TABLE OF CONTENTS ............................................................................................. ii

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

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

STATEMENT OF FACTS ............................................................................................ 1

SUMMARY OF THE ARGUMENT .............................................................................. 5

REPLY TO APPELLANT’S FIRST POINT OF ERROR ............................................... 6

        The evidence was sufficient to corroborate Trejo’s testimony as
        required under Tex. Code Crim. Proc. 38.141.

REPLY TO APPELLANT’S SECOND POINT OF ERROR......................................... 11

        The failure to give a jury instruction on the necessity of
        corroboration of Trejo’s testimony was not egregious error,
        as there was more than sufficient corroboration.


REPLY TO APPELLANT’S THIRD POINT OF ERROR............................................ 14

        The trial court correctly charged the jury that mere presence
        at the scene of the offense does not establish guilt as a party
        to the offense. The additional language requested by
        appellant was an incorrect statement of law and did not fit
        the facts of the case.




                                                        ii
REPLY TO APPELLANT’S FOURTH POINT OF ERROR ........................................ 18

         The trial court did not err in denying appellant’s motion for
         new trial, since appellant was not entitled to the requested
         instruction on which he bases his right to a new trial.

REPLY TO APPELLANT’S FIFTH POINT OF ERROR ............................................ 20

         The trial court did not err in denying appellant’s motion for
         new trial, since appellant was not entitled to the requested
         instruction on which he bases his right to a new trial.


REPLY TO APPELLANT’S SIXTH POINT OF ERROR ............................................ 23

         The evidence was sufficient for the trial court, at the trier of
         fact at punishment, to make an affirmative finding of use of a
         deadly weapon.


PRAYER ................................................................................................................... 27

CERTIFICATE OF SERVICE .................................................................................... 28

CERTIFICATE OF COMPLIANCE ............................................................................ 29




                                                             iii
                                          INDEX OF AUTHORITIES

CASES

Allen v. State,
   253 S.W.3d 260 (Tex. Crim. App. 2008) ..................................................................... 11
Almanza v. State,
  686 S.W.2d 157(Tex. Crim. App. 1984) ................................................................ 11, 15
Arline v. State,
  721 S.W.2d 348 (Tex. Crim. App. 1986) ..................................................................... 15
Barrios v. State,
  283 S.W.3d 348 (Tex. Crim. App. 2009) ..................................................................... 11
Casanova v. State,
  383 S.W.3d 530 (Tex. Crim. App. 2012) ............................................................... 12, 14
Castillo v. State,
  221 S.W.3d 689 (Tex. Crim. App. 2007) ....................................................................... 7
Charles v. State,
  146 S.W.3d 204 (Tex. Crim. App. 2004) ..................................................................... 18
Contreras v. State,
  2012 WL 3737714, at *3 (Tex. App.
  –Fort Worth 2012, no pet.)( not reported) ................................................................ 21
Crawford v. Washington,
  541 U.S. 36, 51 (2004) ........................................................................................... 21, 22
De La Paz v. State,
  273 S.W.3d 671 (Tex. Crim. App. 2008) ............................................................... 21, 22
Delgado v. State,
  235 S.W.3d 244 (Tex. Crim. App. 2007) ..................................................................... 15
Dowthitt v. State,
  931 S.W.2d 244 (Tex. Crim. App. 1996) ....................................................................... 7
Drichas v. State,
  175 S.W.3d 795 (Tex. Crim. App. 2005) ..................................................................... 25
Howell v. State,
  175 S.W.3d 786 (Tex. Crim. App. 2005) ..................................................................... 19
Jackson v. Virginia,
  443 U.S. 307(1979) ...................................................................................................... 25



                                                             iv
Johnson v. State,
  6 S.W.3d 709 (Tex.App.
  -Houston [1st Dist.] 1999, pet. ref'd).............................................................. 24, 25, 26
Lopez v. State,
  428 S.W.3d 271 (Tex. App.
  –Houston [1st Dist] 2014, pet. ref’d) ........................................................................... 19
Malone v. State,
 253 S.W.3d 253 (Tex. Crim. App. 2008) ....................................................................... 7
Morrison v. State,
 608 S.W.2d 233 (Tex. Crim. App. [Panel Op.] 1980) ................................................. 17
Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2005) ..................................................................... 11
Padilla v. State,
  2015 WL 457464 (Tex. App. –
  Houston [1st Dist.], Feb. 3, 2015, pet. ref’d) ............................................................... 14
Pena v. State,
  251 S.W.3d 601 (Tex. App.—
  Houston [1st Dist.] 2007, pet. ref’d) ..................................................................... 10, 13
Randall v. State,
  218 S.W.3d 884 (Tex. App.
  –Houston [1st Dist.] 2007, pet. ref’d) .......................................................................... 7
Reeves v. State,
  420 S.W.3d 812 (Tex. Crim. App. 2013) ..................................................................... 12
Riley v. State,
   378 S.W.3d 453 (Tex. Crim. App. 2012) ..................................................................... 19
Sanchez v. State,
  209 S.W.3d 117 (Tex. Crim. App. 2006) .................................................................... 12
Sanchez v. State,
  354 S.W.3d 476 (Tex. Crim. App. 2011) ..................................................................... 22
Scott v. State,
  946 S.W.2d 166 (Tex. App. –
  Austin 1997, pet. ref’d) ................................................................................................ 16
State v. Herndon,
  215 S.W.3d 901(Tex. Crim. App. 2007) ...................................................................... 19
Stephenson v. State,
  2011 WL 4027721, at (Tex. App.
  —Amarillo 2011, no pet.) (not reported) .................................................................. 22

                                                              v
Sturdivant v. State,
  445 S.W.3d 338 (Tex. App.
   –Houston [1st Dist.] 2013), rev’d on other grounds, 411 S.W.3d 487 (Tex. Crim.
  App.) .............................................................................................................................. 14
Torres v. State,
  137 S.W.3d 191(Tex. App.
  –Houston [1st Dist.] 2004, no pet.) .............................................................................. 7
Torres v. State,233 S.W.3d 26 (Tex. App.
  —Houston [1st Dist.] 2007, no pet.)..................................................................... 24, 26
United States v. Brown,
  441 F.3d 1330, 1358–59 (11th Cir.2006) .................................................................. 21
Wooden v. State,
 101 S.W.3d 542 (Tex. App. –
 Fort Worth, 2003 pet. ref’d) ........................................................................................ 16
Woods v. State,
 152 S.W.3d 105 (Tex. Crim. App. 2004) ..................................................................... 23
Woods v. State,
 998 S.W.2d 633 (Tex. App.
 –Houston [1st Dist.] 1999, pet. ref’d) ............................................................................ 8
Young v. State,
  183 S.W.3d 699 (Tex. App.
  —Beaumont 2006, pet. ref’d) ..................................................................................... 10




                                                                   vi
STATUTES

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ........................................................ 15
TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006) ........................................................ 15
TEX. CODE CRIM. PROC. ANN. Art. 38.141(a) (West 2005). ................................................. 7
TEX. PENAL CODE ANN. § 7.02(a)(2) (West2005) ............................................................... 8




RULES

TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................ i
TEX. R. APP. P. 39.1................................................................................................................ i
TEX. R. APP. P. 9.4(g)............................................................................................................. i




                                                                 vii
TO THE HONORABLE COURT OF APPEALS:



                             STATEMENT OF THE CASE

       The State charged appellant by indictment with the felony offense of

possession of over 400 grams of cocaine with the intent to deliver (CR-11).1

After a trial, the jury found appellant guilty of the offense as charged (CR-129).

The judge then assessed punishment at 45 years in the institutional division of

the Texas Department of Criminal Justice (CR-129). Appellant filed notice of

appeal, and the trial court certified his right to appeal (CR-138, 140).

                         

                               STATEMENT OF FACTS

       On the morning of July 30, 2013, Officer Esquibel and his squad were set

up at a Houston apartment complex to conduct surveillance and hopefully

effect an arrest for a drug deal involving multiple kilos of cocaine (RR3-27,

28). Esquibel had learned of this transaction through Eloy Trejo, a confidential

informant who was acting as a middleman between the buyer, Jahson “J-

Money” Hicks and the Seller, a Hispanic male known only as “Fili.” (RR3-26,




1
 CR refers to the Clerk’s Record, and the number following refers to the page in the Clerk’s
Record. RR refers to the Reporter’s Record. The number following RR is the volume
number, and the number following the dash is the page within that volume.
31). At 9:55 am, Trejo arrived at the apartment complex, followed by a black

Jeep Liberty, driven by Hicks (RR3-40). Appellant was in the front passenger

seat (RR3-40, 43, 46). Both appellant and Hicks exited the Jeep and followed

Trejo into the apartment, where Fili and another Hispanic male were waiting

(RR3-40, 43).

        Fili and the Hispanic male left the apartment at 10:03am and drove to a

nearby Wendy’s (RR3-46-114, 155). They came back a short time later,

followed by two other vehicles (RR3-46). Three individuals got out of those

vehicles, including one carrying a dark-colored bag, and followed Fili and the

other Hispanic male into the apartment (RR3-48, 117-118).

        The sellers, Fili and his companions, had brought back two kilos of

cocaine for appellant and Hicks to inspect (RR3-118-119). Someone used a

knife to cut an “X” into one of the kilos, and appellant extracted a sample

(RR3-120). Appellant asked for a jar and baking soda to use in testing the

cocaine (RR3-120). Appellant didn’t like the baking soda provided, so Trejo

was sent to the store to buy some more (RR3-121). He also picked up some

scales, leaving the apartment at 11:01am and returning at 11:09am (RR3-49,

122).

        Appellant was cooking the cocaine in the microwave when Trejo

returned, but the glass container he was using exploded (RR3-123). Trejo was

                                        2
sent out again to buy a baby food jar to use for completing the test (RR3-124).

Trejo left at 11:16am for that mission and returned at 11:31am (RR3-49).

Appellant finished his testing, and told Hicks that the cocaine was “good”

(RR3-126).

       Unbeknownst to Trejo or the sellers, appellant and Hicks had been

exchanging texts about stealing the cocaine. At 10:36 am, after the cocaine had

arrived but before Trejo left on his first errand, Hicks texted appellant with

the question “U want me too take this shitt??? [sic]”            2   (RR4-64). Appellant

texted back at 10:37am “Yes we would” (RR4-64). At 11:17am, when Trejo

was on his second errand, Hicks again texted appellant “Wht u want me to

do??” (RR4-67, State’s Exhibit No. 34). Appellant did not text back, but after

the appellant finished his test and determined the product was good, Hicks

grabbed the two kilos of cocaine, pulled out a gun, and told the sellers to “get

the fuck back.” (RR3-126). Appellant looked surprised and asked Hicks “what

the fuck are you doing?” Nonetheless, appellant pushed Hicks out the door

with the gun and the cocaine, and the two broke into a run towards the Jeep

(RR3-126).




2
 The spelling of these texts comes from the State’s Exhibit No. 33 and 34, which are printed
out downloads of texts made from each phone.

                                             3
      Appellant got in the driver’s seat of the Jeep while Hicks, carrying a

brown bag containing the two kilos of cocaine, got in the passenger side (RR3-

50). They pulled out of the parking lot at a high rate of speed (RR3-50).

Appellant was driving fast, weaving in and out of traffic, and ran a red light

(RR3-52). After getting a fair distance away from the apartment complex,

appellant slowed down and started going the speed limit (RR3-52).

      When signaled by a marked police car to pull over, appellant drove to a

turnaround and slowed down as though he were going to stop (RR3-55).

Instead, he sped up and went further down the feeder road before finally

coming to a stop near a wooded area (RR3-203). This allowed Hicks to jump

out of the Jeep and escape into the woods, taking the cocaine with him (RR3-

55-56). Appellant sped up again and went a short distance before finally

coming to a stop (RR3-203). In the arresting officer’s experience, this happens

when a driver is trying to give the person that runs time to get away because

they know that the police are going to stay with the car instead of the runner

until the vehicle is stopped (RR3-208). The tactics worked; Hicks did actually

escape capture, although the police recovered the bag containing the two kilos

of cocaine and Hicks’ cell phone in the woods (RR3-57, 208, 214).

      Appellant was arrested and his phone was also seized (RR4-12).

Records obtained from appellant’s and Hicks’ phones established not only the

                                      4
texts between appellant and Hicks while they were in the apartment with

Trejo, but also that there had been a number of calls between the two in the

days prior to the offense and one made just shortly before appellant and Hicks

entered the apartment (RR4-78-80). In addition, the two texts from Hicks to

appellant which had been sent while they were in the apartment had been

deleted from appellant’s phone (RR4-82).3 These were the only two texts out

of dozens received by appellant in the last two weeks which had been deleted

(RR4-82, State’s Exhibit No. 34).

                         



                              SUMMARY OF THE ARGUMENT

       First, the evidence was sufficient to corroborate Trejo’s testimony as

required under Tex. Code Crim. Proc. art. 38.141. Second, the failure to give a

jury instruction on the necessity of corroboration of Trejo’s testimony was not

egregious error, as there was more than sufficient corroboration introduced

at trial. Third, the trial court correctly charged the jury that mere presence at

the scene of the offense does not establish guilt as a party to the offense. The

additional language requested by appellant was an incorrect statement of the


3The technicians from the District Attorney’s office were able to recover the messages
despite their being deleted. (RR4-82).
                                             5
law and did not fit the facts of the case. Fourth, the trial court did not err in

denying appellant’s motion for new trial, since appellant was not entitled to

the requested instruction on which appellant bases his right to a new trial.

Fifth, the admission of text messages from Jahson Hicks’ phone did not violate

appellant’s Sixth Amendment rights under the Confrontation Clause, as the

messages were not testimonial in nature. Finally, the evidence was sufficient

for the trial court, as the trier of fact at punishment, to make an affirmative

finding that appellant used a deadly weapon in the commission of this offense.

                      



                REPLY TO APPELLANT’S FIRST POINT OF ERROR

      The evidence was sufficient to corroborate Trejo’s testimony
      as required under Tex. Code Crim. Proc. 38.141.


      In his first point of error, appellant contends that there was insufficient

evidence to corroborate Trejo’s testimony, as required by TEX. CODE CRIM. PROC.

38.141.

      Article 38.141 of the Code of Criminal Procedure provides:

      A defendant may not be convicted of an offense under Chapter
      481, Health and Safety Code, on the testimony of a person who is
      not a licensed peace officer or a special investigator but who is
      acting covertly on behalf of a law enforcement agency or under
      the color of law enforcement unless the testimony is corroborated
                                       6
       by other evidence tending to connect the defendant with the
       offense committed.

TEX. CODE CRIM. PROC. ANN. Art. 38.141(a) (West 2005).

       The covert-witness4 corroboration requirement is similar to the

corroboration required of an accomplice-witness under Art. 38.14 of the Code

of Criminal Procedure, and the same standard of review applies for both.

Malone v. State, 253 S.W.3d 253, 257–58 (Tex. Crim. App. 2008); Torres v.

State, 137 S.W.3d 191, 196 (Tex. App. –Houston [1st Dist.] 2004, no pet.)

       To measure the sufficiency of the corroborating evidence, the reviewing

court must eliminate the covert-witness testimony from the record and

determine whether the remaining inculpatory evidence tends to connect the

defendant to the offense. Id. at 257. The “tends to connect” standard is not a

high threshold. Randall v. State, 218 S.W.3d 884, 886 (Tex. App. –Houston [1st

Dist.] 2007, pet. ref’d). The corroborating evidence need not directly link the

accused to the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App.

2007); Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)

       Circumstances that appear insignificant may constitute sufficient

evidence of corroboration. Malone, 253 S.W.3d at 253, 257. Though “mere



4 Caselaw refers to these individuals as either “confidential informants or “covert-
witnesses.” The State prefers the latter term, since the issue comes up only if the individual
testifies, and the statute uses the term “acting covertly.”
                                              7
presence” is insufficient corroboration, evidence that the defendant was at or

near the scene when or about when it was committed may sufficiently tend to

connect the defendant to the crime, provided the evidence is “coupled with

other suspicious circumstances.” Id. at 257

      The evidence and the State’s theory of the case established that

appellant was guilty as a party of possessing over 400 grams of cocaine with

the intent to deliver. To prove that a defendant is criminally responsible for

possession of a controlled substance as a party, the evidence must first show

that another person possessed the contraband. Woods v. State, 998 S.W.2d

633, 636 (Tex. App. –Houston [1st Dist.] 1999, pet. ref’d). The State must then

show that, with the intent to promote or assist the commission of the offense,

the defendant solicited, encouraged, directed, aided, or attempted to aid the

other’s possession. TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2005); Woods, 998

S.W.2d at 636.

      Removing Eloy Trejo’s testimony from consideration, there is ample

evidence from police surveillance and phone records which “tends to connect”

appellant to possessing the cocaine as a party.

1. Police observed appellant and Hicks arrive together in a black Jeep Liberty,
   having followed Trejo’s car over to the apartment complex. The three then
   entered an apartment that the police had under surveillance as the location
   for the drug deal (RR3-42).


                                       8
2. Fili and another male left and returned with several other people in two
   more cars. Three men got out and one carried a dark gym-size bag into the
   apartment (RR3-48).

3. Phone records established that after Fili returned, Hicks texted appellant
   with the question “U want me too take this shitt???” Appellant texted back
   a minute later “Yes we would” (RR4-64).5 Later, Hicks texted appellant
   “Wht u want me to do??” (RR4-67, State’s Exhibit No. 34).

4. Police observed appellant and Hicks run out of the apartment and sprint to
   the Jeep. Hicks was carrying a brown bag with him. Appellant got in the
   driver’s side and sped away. He was seen weaving in and out of traffic, and
   ran a red light in an apparent attempt to avoid being followed (RR3-50, 52,
   RR4-170).

5. After getting far enough away from the apartment complex, appellant
   slowed down and started going the speed limit (RR3-52).

6. When appellant was signaled to pull over by police, he took evasive
   measures before stopping next to a wooded area, which allowed Hicks to
   jump out of the car and escape into the woods, carrying the brown bag with
   him (RR3-55-56).

7. Hicks escaped but police were able to recover the bag he was carrying,
   which contained two kilos of cocaine (RR3-208).

8. Phone records established that there had been several phone calls between
   appellant’s phone and Hick’s phone in the days prior to the offense and one
   made just shortly before appellant and Hicks entered the apartment (RR4-
   78-80).



5 While the answer seems strangely worded, the witness testified that on a phone
keyboard, “w” and “s” are right next to each other, indicating that appellant probably meant
to text “yes we should” instead of “yes we would.” (RR4-65). This makes sense given the
context, but whether it was appellant’s intent to text “would” or “should,” the operative
word here is “yes,” indicating that appellant gave the go-ahead for Hicks to take the
cocaine. Also, the other texts show that the parties were not fastidious users of the English
language.
                                             9
9. The two messages from Hicks to appellant were deleted from appellant’s
   phone sometime between being sent in the apartment and appellant’s
   roadside arrest. These were the only two incoming texts which were
   deleted (RR4-82, State’s Exhibit No. 34).

      In short, everything observed by police and every action taken by

appellant indicated that appellant was a party to the possession of this

cocaine. Appellant came with Hicks to the drug deal, gave the order for Hicks

to take the drugs, ran with him out of the apartment and to the Jeep, and

drove away in such a manner that he made sure they escaped with the

contraband. When required to stop by police he again did so in such a way and

at such a location that Hicks was able to escape into the woods with the

cocaine. His guilt was only emphasized by the fact that he carefully deleted the

texts he had received from Hicks and no others. These facts are more than

sufficient to “tend to connect” appellant to possession of the cocaine. Pena v.

State, 251 S.W.3d 601, 606 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d);

Young v. State, 183 S.W.3d 699, 702 (Tex. App.—Beaumont 2006, pet. ref’d).

      Appellant’s first point of error is without merit, and should be

overruled.

                      




                                      10
              REPLY TO APPELLANT’S SECOND POINT OF ERROR

      The failure to give a jury instruction on the necessity of
      corroboration of Trejo’s testimony was not egregious error,
      as there was more than sufficient corroboration.


      Appellant contends in his second point of error that the trial court erred

in failing to give the jury an instruction regarding the need for corroboration

of Trejo’s testimony, pursuant to Texas Code of Criminal Procedure Art.

38.141. Appellant acknowledges that he did not request such instruction, and

the trial court did not sua sponte include such instruction in the jury charge.

      Under Almanza, the degree of harm required for reversal depends on

whether the error was preserved in the trial court. Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984); Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005). When a defendant does not raise a timely objection to

the jury instruction, reversal is required only if the error was fundamental in

the sense that it was so egregious and created such harm that the defendant

was deprived of a fair and impartial trial. See Almanza, 686 S.W.2d at 171;

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Charge error is

egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. See id.; Allen

v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). Egregious harm is a “high


                                        11
and difficult standard” to meet, and such a determination must be “borne out

by the trial record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App.

2013).

      Whether error in failing to submit a covert-witness instruction rises to

the level of egregious error is a function of the strength of the corroborating

evidence. Casanova v. State, 383 S.W.3d 530, 539-40 (Tex. Crim. App. 2012)

(discussing egregious error analysis in context of failure to give accomplice

witness standard) The strength of that evidence is, in turn, a function of (1) its

reliability or believability and (2) how compellingly it tends to connect the

accused to the charged offense. Id. Other factors to consider are (1) the

entirety of the charge itself, (2) the arguments of counsel, and (3) other

relevant information revealed by the record. See Sanchez v. State, 209 S.W.3d

117, 121 (Tex. Crim. App. 2006).

      While the charge did not contain an instruction requiring corroboration

of Trejo’s testimony, there was plenty of corroboration to be had, as outlined

in the previous point of error. Furthermore, the prosecutor emphasized that

the jury did not have to rely on Trejo’s version of events, but should also

consider all the other evidence which corroborated Trejo’s testimony.

Specifically, the State stressed in closing argument that Trejo’s testimony was



                                       12
corroborated by messages on appellant’s phone and by the observations of

police.

      “If you want to say at the end of this that somehow we can’t find
      Courtney Bryant guilty because there’s a CI who told us what’s
      going on even though text messages back up exactly what the CI
      was seeing inside, even though when they come running outside
      they’re not arguing over whose going where or do what. They go in
      the same car and guess what he goes straight to the driver’s seat.
      You don’t hear a struggle about whose going to drive. He’s driving
      ‘cause he knows he’s driving away (RR-145)

      [Y]ou all have to go back and look at each piece of evidence,
      everything Eloy said, everything that those officers saw and see if
      they match up and guess what they do. He had to leave twice.
      That’s exactly what the officers told you. Eloy’s telling you he had
      to leave matching up what the officers are telling you. Every time
      Eloy is saying I saw X marks the spot, blah blah blah dude is that --
      yes. He says I remember them cutting an X into it and an X is what
      I – is what we saw. (RR4-153).

      Coming from multiple police officers and appellant’s own phone, the

evidence of corroboration was credible, reliable, and abundant. Furthermore,

the State did not urge the jury to convict on Trejo’s testimony alone, but

emphasized how all the other evidence confirmed his testimony. Cf. Pena, 251

S.W.3d at 611 (Holding failure to give a corroboration instruction not

egregious harm even when State misstated the law and said confidential

informant’s testimony did not need to be corroborated.)

      Viewing the record in its entirety, this Court can conclude that the

evidence corroborating Trejo’s testimony was not “so unconvincing in fact as

                                       13
to render the State’s overall case for conviction clearly and significantly less

persuasive.” Casanova, 383 S.W.3d at 534. Therefore, appellant did not suffer

egregious harm from the absence of an instruction on corroborating the

accomplice witness testimony. Id., at 54 (finding failure to give accomplice

witness corroboration instruction not egregious error); Sturdivant v. State,

445 S.W.3d 338, 355 (Tex. App. –Houston [1st Dist.] 2013), rev’d on other

grounds, 411 S.W.3d 487 (Tex. Crim. App.) (same); Padilla v. State, 2015 WL

457464 (Tex. App. –Houston [1st Dist.], Feb. 3, 2015, pet. ref’d) (finding failure

to give instruction on corroboration instruction for covert-witness not

egregious error.).


                       



                REPLY TO APPELLANT’S THIRD POINT OF ERROR

      The trial court correctly charged the jury that mere presence
      at the scene of the offense does not establish guilt as a party
      to the offense. The additional language requested by
      appellant was an incorrect statement of law and did not fit
      the facts of the case.

      Appellant argues in his third point of error that the trial court erred in

failing to properly charge the jury on “mere presence.” In fact, the jury was

given a correct charge on mere presence, and the additional language


                                        14
requested by appellant is neither an accurate statement of the law nor

correctly fits the facts of the case.

      A. Standard of Review

      The purpose of the jury charge is to instruct the jury on the law that

applies to the case and to guide the jury in applying the law to the facts of the

case. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); see also

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (trial court shall give jury “a

written charge distinctly setting forth the law applicable to the case”). When

reviewing an error based upon the charge to the jury, courts determine

whether error existed in the charge, and whether the error was calculated to

injure the defendant’s rights. See Barrios v. State, 283 S.W.3d at 350; Arline v.

State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); TEX. CODE CRIM. PROC. ANN.

art. 36.19 (West 2006). In making this determination, courts examine the

charge as a whole, considering the workable relationship between the

abstract paragraphs of the charge—the instructions and definitions—and

those applying the abstract law to the facts. Almanza, 686 S.W.2d at 171.




                                        15
         B. Discussion of Jury Charge

         The jury charge included an instruction on mere presence or knowledge

of guilty intent not being enough to establish guilt as a party.6 Appellant’s

request was to add an additional component to this charge:

         “Under [Wooden v. State] which is 101 Southwest 3rd 542 Texas
         appellate court out of Fort Worth 2003 where petition was
         refused the Court quotes: “Standing alone, proof that an accused
         was present at the scene of the crime or assisted the primary
         actor in making his getaway is insufficient”
                So my proposed addition would be mere presence alone at
         the scene of a crime …who are assisted or assisting a primary actor
         in making his getaway will not constitute one to a party – one a
         party to an offense. Furthermore, knowledge of the guilty intent
         of the parties present will not constitute one a party to an
         offense.” (sic passim) (italics added) (RR4-128).

    The trial declined to add this additional language (RR4-119).

         Defense counsel borrowed the wording for his requested charge from

Scott v. State, 946 S.W.2d 166, 168 (Tex. App. –Austin 1997, pet. ref’d) and

Wooden v. State, 101 S.W.3d 542, 546 (Tex. App. –Fort Worth, 2003 pet. ref’d).

Both of these cases, however, used this language in discussing the sufficiency

of the evidence to find a defendant guilty of aggravated robbery as a party.


6“A person is criminally responsible for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere
presence alone at the scene of a crime and knowledge of the guilty intent of the parties
present will not constitute one a party to an offense.” (CR-119).
                                            16
These were not cases involving language to be included in a jury charge, and

appellant cites no caselaw in which such language has been sanctioned or

given in a charge.

      Furthermore, such language would be inappropriate in a possession

case. In a robbery, there could be a situation where helping an individual after

they’ve committed the robbery, such as giving that individual a ride away

from the scene, would not make one a party to the offense. Morrison v. State,

608 S.W.2d 233, 235 (Tex. Crim. App. [Panel Op.] 1980) (“One’s acts

committed after the offense is completed cannot make him a party to the

offense”).7 This case, however, was a possession case; the offense of

possession was still continuing throughout the time appellant drove the car

and during his maneuvers to let Hicks escape into the woods. Thus,

throughout the time appellant and Hicks were together, even in flight,

appellant could be guilty of possession of cocaine, unlike the aggravated

robbery cases, where a getaway driver could conceivably not be part of the

preceding crime. Cf. Scott, 946 S.W.2d at 170. (holding that the evidence was


7
  Then again, a defendant could be guilty as a party for driving the getaway car in an
aggravated robbery case if “before the codefendants committed the offense of robbery,
appellant entered into a conspiracy and agreed to become a party to aid in the robbery by
driving the getaway car.” Scott, 946 S.W.2d at 170. Thus, the phrasing of appellant’s
proposed instruction would not be correct even in an aggravated robbery case.



                                           17
insufficient to find that appellant was part of the conspiracy to rob the victim

before it occurred). The jury was given a correct charge on mere presence,

and the additional language requested by appellant would have been

improper in this case. Appellant’s third point of error should be overruled.

                      



            REPLY TO APPELLANT’S FOURTH POINT OF ERROR

      The trial court did not err in denying appellant’s motion for
      new trial, since appellant was not entitled to the requested
      instruction on which he bases his right to a new trial.

      Appellant filed a motion for new trial making general allegations that

the judgement was “contrary to the law and the evidence, and the Court

misdirected the Jury about the law and/or committed a material error that

injured the Defendant’s rights.” (CR-132). At a hearing on this motion, defense

counsel asserted as grounds for a new trial the fact that the trial court did not

give the requested charge discussed in the previous point of error. The trial

court denied this motion (CR-VI-6).

      The standard of review for denial of a motion for new trial is abuse of

discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). The

test for an abuse of discretion is “whether the trial court acted without

reference to any guiding rules or principles.” State v. Herndon, 215 S.W.3d 901,
                                       18
906 (Tex. Crim. App. 2007) (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex.

Crim. App. 2005). The fact that an appellate court may decide a matter

differently from a trial court does not demonstrate an abuse of discretion.

Herndon., at 907-08. Appellate courts view the evidence in the light most

favorable to the trial court’s ruling, defer to the court’s credibility

determinations, and presume that all reasonable fact findings in support of

the ruling have been made. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.

2012); Lopez v. State, 428 S.W.3d 271, 278 (Tex. App. –Houston [1st Dist.]

2014, pet. ref’d).

      As discussed in the previous point of error, the trial court correctly

refused appellant's request to supplement the “mere presence” instruction

with language stating that appellant could not be found guilty as a party for

“assisting the primary actor in making his getaway” since such instruction was

not correct and did not fit the offense charged.

      Since the requested charge was properly denied, the trial judge did not

abuse her discretion in denying the motion for new trial on this basis.

Appellant’s fourth point of error is without merit and should be overruled.

                      




                                       19
                     REPLY TO APPELLANT’S FIFTH POINT OF ERROR

         The admission of text messages from Jahson Hicks’ phone did
         not violate appellant’s Sixth Amendment rights under the
         confrontation clause, as the messages were not testimonial in
         nature.

         Appellant, in his fifth point of error, complains of the admissibility of

text messages made from Jahson Hicks’ phone to appellant’s phone. This

phone was recovered from the woods where Hicks fled. Nathan Gates, an

investigator with the Harris County District Attorney’s office, extracted the

data from both Hicks’ and appellant’s cell phones and transferred it to a flash

drive (State’s Exhibit No. 32).8 A printout of the text messages and call logs

from the two phones was then introduced into evidence (State’s Exhibit No.

33, 34). From these, the State was able to establish that during the time

appellant and Hicks were in the apartment with Trejo, Hicks sent appellant

texts that read “U want me too take this shitt???” and “Wht u want me to do??”

(RR4-64, 67, State’s Exhibit No. 34). The defense objected to the admissibly of

State’s Exhibit No. 32 and 33 on the grounds of “hearsay and confrontation.”




8   The State first obtained a search warrant for retrieval of this information. (RR4-53-54).

                                               20
(RRIV-55, 63, 69). It is the Confrontation Clause objection to these two text

messages from Hicks which appellant now argues on appeal. 9

       The Sixth Amendment to the United States Constitution protects an

accused’s right to be confronted with the witnesses against him in a criminal

prosecution. Crawford v. Washington, 541 U.S. 36, 51 (2004). A defendant’s

right to confront and cross-examine witnesses against him, under the

Confrontation Clause, applies only to statements which are “testimonial” in

nature. Id., at 68. Testimonial statements are those “that were made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.” Id. See also De La

Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (“Generally speaking,

a hearsay statement is ‘testimonial’ when the surrounding circumstances

objectively indicate that the primary purpose of the interview or interrogation




9
  Appellant does not raise any issue as to text messages sent by appellant himself,
specifically his answering text to Hicks of “Yes we would” (RR4-64, State’s Exhibit No.34).
Presumably this is because he realizes that the Confrontation Clause is not implicated when
a criminal defendant’s own incriminating statements are used against him. See United
States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir.2006) (holding that admitting
defendant’s own statement did not violate Confrontation Clause because “a party cannot
seriously claim that his or her own statement should be excluded because it was not made
under oath or subject to cross-examination”) See also, Contreras v. State, 2012 WL
3737714, at *3 (Tex. App. –Fort Worth 2012, no pet.)( not reported) (finding no
Confrontation Clause violation for admitting text messages sent by defendant).

                                            21
is to establish or prove past events potentially relevant to later criminal

prosecution.”)

      The Sixth Amendment does not bar the introduction of out-of-court

statements that would have been admissible in a criminal case at the time of

the founding. Ohio v. Clark, 13-1352, 2015 WL 2473372, at *6 (U.S. June 18,

2015) (citing Giles v. California, 554 U.S. 353, 358–359 (2008); Crawford, 541

U.S., at 56, n. 6). It also does not prohibit the admission of non-testimonial

hearsay. Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011). The

Supreme Court has noted that most hearsay exceptions have historically

covered “statements that by their nature were not testimonial—for example,

business records or statements in furtherance of a conspiracy.” Crawford, 541

U.S. at 56 (emphasis added). Whether a statement is testimonial is a question

of law. De La Paz, 273 S.W.3d at 680.

      The text messages in this case were not testimonial in nature. They

were made by Hicks, a co-conspirator, in furtherance of a plan to steal cocaine

from the sellers he and appellant were meeting with. There is no evidence

that Hicks made these statements under circumstances where an objective

witness would believe that they were being made for use at trial. See

Stephenson v. State, 2011 WL 4027721, at (Tex. App.—Amarillo 2011, no pet.)

(not designated for publication) (finding text messages from defendant’s

                                        22
sister to friend were non-testimonial in nature). See also Davis v. State, 268

S.W.3d 683, 709 (Tex. App. –Fort Worth, 2008, pet. ref’d) (holding that

statements made during a cell phone call conducted in the presence of a friend

were not testimonial); Woods v. State, 152 S.W.3d 105, 114 (Tex. Crim. App.

2004) (stating that co-defendant’s spontaneous statements to acquaintances

were not testimonial).

      Since these text messages were not testimonial in nature, the trial court

ruled correctly in allowing the messages to be introduced into evidence.

Appellant’s Sixth Amendment right to confrontation has not been violated and

his fifth point of error should be overruled.

                       



                REPLY TO APPELLANT’S SIXTH POINT OF ERROR

      The evidence was sufficient for the trial court, at the trier of
      fact at punishment, to make an affirmative finding of use of a
      deadly weapon.


      After appellant’s conviction, the defense elected to have the trial court

determine punishment and decide whether a deadly weapon finding should

be made (CR-126, RR5-7). After argument from the State and the defense, the

court announced that appellant was a party to the offense, made an


                                        23
affirmative finding of the use of a firearm during the commission of the

offense, and assessed punishment at 45 years in the Institutional Division of

the Texas Department of Criminal Justice (RR5-26). It is appellant’s

contention that the evidence does not support the trial court’s deadly weapon

finding.

      Tex. Code Crim. Proc. art. 42.12§ 3(g)(a)(2) provides that a “deadly

weapon” finding should be entered when it is shown that a deadly weapon

“was used or exhibited during the commission of a felony offense or during

immediate flight therefrom, and that the defendant used or exhibited a deadly

weapon or was a party to the offense and knew that a deadly weapon would be

used or exhibited.” (emphasis added). Evidence that a defendant personally

used or exhibited a deadly weapon is not required when the defendant is

guilty of an offense as a party. Torres v. State, 233 S.W.3d 26, 30 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). When the defendant is a party, evidence

that he or she knew a deadly weapon would be used or exhibited is sufficient

to support a deadly weapon finding. Johnson v. State, 6 S.W.3d 709, 713 (Tex.

App. –Houston [1st Dist.] 1999, pet. ref'd). The inquiry on review of the

sufficiency of the evidence to support a deadly weapon finding is the same as

that used to support a criminal conviction; i.e. whether any rational trier of

fact could have made a deadly weapon finding “beyond a reasonable doubt

                                      24
after viewing the evidence in the light most favorable to the prosecution.”

Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979).

       Appellant contends that “there is no evidence that appellant anticipated

that [Hicks] would produce a pistol and rob anybody, nor any evidence that

appellant assisted [Hicks] in doing so once the action started.” (appellant’s

brief, p. 27). This is simply incorrect. Appellant and Hicks clearly had a plan to

steal the kilos of cocaine in this case. They brought no money to the

transaction, Hicks texted appellant as to whether he should take the cocaine

once it was delivered to the apartment, and appellant affirmatively texted him

back, giving him the go ahead. Once appellant completed his testing of the

cocaine and determined that it was good, Hicks carried out his plan, by

displaying his gun and taking possession of the cocaine in appellant’s presence.

Appellant continued aiding in the crime by guiding Hicks, who was still

holding the gun, out of the apartment and running with him to the car, where

he acted as the getaway driver.          10   See Johnson v. State, 6 S.W.3d at 713



10
   While appellant acted surprised by Hick’s actions in conducting the holdup, a rational
trier of fact could have determined that this was a pretense meant to lessen suspicion on
himself and throw the sellers off guard. The prior texts between appellant and Hicks and
appellant’s actions in quickly helping Hicks escape out of the apartment with the drugs
instead of trying to stop the holdup or telling Hicks to calm down, shows his real intentions
and knowledge.
                                              25
(evidence sufficient for deadly weapon finding when the defendant, even

though not present at the actual robbery, was guilty as a party to the offense

by performing reconnaissance of location and driving getaway car); Cf. Torres

v. State, 233 S.W.3d at 30 (evidence insufficient to support defendant’s deadly

weapon finding as a party when defendant was never in proximity of

weapons, weapons were in apartment but were not visible to anyone entering

apartment, and appellant did not own apartment and had never been there

before.)

      The evidence was sufficient for the trial court judge, as trier of fact on

the issue of the deadly weapon finding, to make an affirmative finding that

appellant knew a deadly weapon would be used or exhibited in the

commission of this offense. See Johnson, 6 S.W.3d at 713. Appellant’s sixth and

final point of error is without merit and should be overruled.

                      




                                       26
                                 PRAYER

      The State respectfully requests that this Court affirm the judgment of

the trial court.

                                             DEVON ANDERSON
                                             District Attorney
                                             Harris County, Texas


                                             /s/Kimberly Aperauch Stelter
                                             KIMBERLY APERAUCH STELTER
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             (713) 755-5826
                                             State Bar Number:19141400
                                             stelter_kimberly@dao.hctx.net




                                     27
                             CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument is being served

by EFileTXCourts.Gov e-filer to the following email address

      Joseph W. Varela
      Attorney at law
      Suite 247 2500 East T.C. Jester Blvd.
      Houston, TX 77008
      jwvarela@gmail.com



                                               /s/Kimberly Aperauch Stelter
                                               KIMBERLY STELTER
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               State Bar Number: 19141400
                                               stelter_kimberly@dao.hctx.net




                                      28
                       CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated

document has a word count of 7,258 words, based upon the representation

provided by the word processing program that was used to create the

document.




                                          /s/Kimberly Aperauch Stelter
                                          KIMBERLY STELTER
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002-1923
                                          (713) 755-5826
                                          TBC No. 19141400
                                          stelter_kimberly@dao.hctx.net




                                  29
