                                                                                  ACCEPTED
                                                                              12-15-00002-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         5/8/2015 12:21:04 PM
                                                                                CATHY LUSK
                                                                                       CLERK

                      12-15-00002-CR

                                                           RECEIVED IN
                                                     12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                      5/8/2015 12:21:04 PM
                                                          CATHY S. LUSK
                                                              Clerk

                  Q’ANDREW SHELTON

                               Appellant,
                                                               5/8/2015
                              v.

                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 114th District Court of Smith County, Texas
                Trial Cause No. 114-0724-14




         ORAL ARGUMENT NOT REQUESTED


                          Austin Reeve Jackson
                          JLawAppeals@gmail.com
                          Texas Bar No. 24046139
                          112 East Line, Suite 310
                          Tyler, TX 75702
                          Telephone: (903) 595-6070
                          Facsimile: (866) 387-0152
                     IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Brent Ratekin
422 S. Spring Ave.
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 4

    I.      JURISDICTION ............................................................................................. 4

    II.     THERE WERE NO ERRORS IN VOIR DIRE ........................................... 5

    III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
         THE VERDICT .............................................................................................. 6

                  Posession .................................................................................................... 7

    IV. PUNISHMENT ............................................................................................... 9

    V.      EFFECTIVE ASSITANCE OF COUNSEL............................................... 10

CONCLUSION AND PRAYER .................................................................................. 11
CERTIFICATE OF COUNSEL ................................................................................... 12
CERTIFICATE OF SERVICE ..................................................................................... 13
CERTIFICATE OF COMPLIANCE ............................................................................ 13




                                        INDEX OF AUTHORITIES


                                                              iii
                                  TABLE OF AUTHORITIES


UNITED STATES SUPREME COURT:

Anders v. California,
 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) .................................... 4, 12

Jackson v. Virginia,
  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .................................... 6, 9

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) .................................. 10, 11


TEXAS COURT OF CRIMINAL APPEALS:

Brooks v. State,
 323 S.W.3d 893 (Tex.Crim.App. 2010) ........................................................ 6

Cannon v. State,
 668 S.W.2d 401 (Tex.Crim.App. 1984) ........................................................ 11

Curry v. State,
 30 S.W.3d 394 (Tex.Crim.App. 2000) .......................................................... 9

Dewberry v. State,
 4 S.W.3d 735 (Tex.Crim.App. 1999) ............................................................ 9

Gamboa v. State,
 296 S.W.3d 574 (Tex.Crim.App. 2009) ........................................................ 5

Ganious v. State,
 436 S.W.2d 137 (Tex.Crim.App. 1969) ........................................................ 2

Gonzales v. State,
 353 S.W.3d 826 (Tex.Crim.App. 2011) ........................................................ 5

Harris v. State,
 656 S.W.2d 481 (Tex.Crim.App. 1983) ........................................................ 10

                                                    iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 10

Johnson v. State,
  614 S.W.2d 148 (Tex.Crim.App. 1981) ........................................................ 11

Jones v. State,
  982 S.W.2d 386 (Tex.Crim.App. 1998) ........................................................ 5-6

Jordan v. State,
  495 S.W.2d 949 (Tex.Crim.App. 1973) ........................................................ 10

King v. State,
 29 S.W.3d 556 (Tex.Crim.App. 2002) .......................................................... 8

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 10

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 10

Murray v. State,
 302 S.W.2d 874 (Tex.Crim.App. 2009) ........................................................ 5

Rhodes v. State,
 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 9-10

Rodriguez v. State,
 899 S.W.2d 658 (Tex.Crim.App. 1995) ........................................................ 11

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 11




                                                    v
TEXAS COURTS OF APPEAL:

Beltran v. State,
 99 S.W.3d 807 (Tex.App.—Houston [14th Dist.] 2003) ............................... 6

Castaneda v. State,
 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 10

Figueroa v. State,
  250 S.W.3d 490 (Tex.App.—Austin 2008) ................................................... 8

Hurtado v. State,
 881 S.W.2d 738 (Tex.App.-Houston [1st dist.] 1994) ................................... 8

Kirk v. State,
 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 10

Mays v. State,
 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ............................................ 4


STATUTES:

TEX. CODE CRIM. PROC. art. 4.05 ...................................................................... 5

TEX. PEN. CODE § 12.42 .................................................................................... 9

TEX. HEALTH & SAFETY CODE § 481.002 ......................................................... 7

TEX. HEALTH & SAFETY CODE § 481.115 ......................................................... 9

TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 4, 5, 7

TEX. R. APP. P. 33.1 .......................................................................................... 6, 9




                                                            vi
                                12-15-00002-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                             Q’ANDREW SHELTON

                                       Appellant,

                                      v.

                             THE STATE OF TEXAS

                                           Appellee



        On Appeal from the 114th District Court of Smith County, Texas
                        Trial Cause No. 114-0724-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Q’Andrew Shelton, and

files this brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would

show the Court as follows:
                          STATEMENT OF THE CASE

      Q’Andrew Shelton seeks to appeal his conviction and sentence for the of-

fense of Possession of a Controlled Substance in a Drug Free Zone rendered

against him in December of last year. (I CR 158). Mr. Shelton was indicted for

this offense in June of 2014 in the 114th District Court of Smith County, Texas. (I

CR 1). To this charge he entered a plea of “not guilty” and proceeded to trial by

jury. (I CR 158). Ultimately, the jury found him to be guilty. (Id.). The trial

court then imposed punishment at a term of fifty years’ confinement. (Id.). Sen-

tence was pronounced on 11 December 2014 and notice of appeal then timely

filed. (I CR 158, 168).

                              ISSUES PRESENTED

      Counsel has reviewed the appellate record in this cause and reluctantly con-

cludes that as a matter of professional judgment the record contains no reversible

error and no jurisdictional defects are present. Where counsel concludes that there

are no arguable grounds for reversal, he is required to present a professional evalu-

ation of the record demonstrating why there are no arguable grounds to be ad-

vanced. Ganious v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).




                                         2	  
                           STATEMENT OF FACTS

      In April of last year officers with the Tyler Police Department were sent to a

neighborhood in response to a loud vehicle parked on the street. (XIII RR 33).

The first officer to arrive attempted to locate the owner of the vehicle and in doing

so came across Appellant, Mr. Q’Andrew Shelton. (XIII RR 40-41). Mr. Shelton

admitted to being the owner of the vehicle and the officer engaged him in a brief

conversation during which time he noticed that Mr. Shelton, who appeared to be

nervous and who smelled of marijuana, was “holding a red and white cigar-type

box.” (XIII RR 41). Mr. Shelton continued to exhibit signs of elevated nervous-

ness and was “giving on-verbal cues .. associate with someone that’s contemplat-

ing evading on foot….” (XIII RR 44). Given this circumstance, the officer asked

Mr. Shelton to sit on the front steps of one of the nearby homes. (XIII RR 50).

      Once seated, Mr. Shelton “immediately began calling people on a cell

phone.” (XIII RR 53). Apparently, he was able to contact a woman inside the

home who came out on the front step and attempted to take the cigar box Mr. Shel-

ton had been holding. (XIII RR 56). The officer asked her to have a seat as well

and she complied. (XIII RR 56).

      Based on what he had observed the officer conducted a pat-down of Mr.

Shelton and found a vile of PCP in his pocket. (XIII RR 58). This led to a search




                                         3	  
of the cigar box he had been holding inside of which were found twelve additional

vials of PCP. (XIII RR 60).

        As a result of this search Mr. Shelton was charged with the instant offense.

(I CR 1). To the charge he entered a plea of “not guilty,” was convicted, and sen-

tenced to serve a term of fifty years’ confinement. (I CR 158). Sentence was pro-

nounced on 11 December 2014 and notice of appeal then timely filed. (I CR 158,

168).

                          SUMMARY OF ARGUMENT

        In accordance with the requirements of Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record

and determined that, in his professional opinion, the record contains no reversible

error or jurisdictional defects. Under circumstances where there appears to be no

arguable grounds for reversal on appeal, counsel is required to present a profes-

sional evaluation of the record supporting this assertion. See Mays v. State, 904

S.W.2d 290, 922-23, (Tex.App.—Fort Worth 1995, no pet.).

                                   ARGUMENT

        I. JURISDICTION

        Under Texas law, possession of a controlled substance with the intent to de-

liver, as alleged here, is a felony offense. (I CR 1); TEX. HEALTH & SAFETY CODE

§ 481.134 (Vernon 2013). Therefore, jurisdiction properly rested with the 114th



                                          4	  
District Court of Smith County, Texas. See TEX. CODE CRIM. PROC. ANN. Art.

4.05 (Vernon 2007) (stating that district courts shall have original jurisdiction in

felony criminal cases); Murray v. State, 302 S.W.2d 874, 877 (Tex.Crim.App.

2009). Additionally, because it alleged all of the essential elements of the charged

offense, the indictment returned in this case provided Mr. Shelton with sufficient

notice of the offense with which he was charged. (I CR 1); see also TEX. HEALTH

& SAFETY CODE § 481.134 (elements of the offense). Consequently, no error re-

garding the trial court’s jurisdiction can be advanced.

      II. THERE WERE NO ERRORS IN VOIR DIRE.

      Counsel has reviewed that portion of the record pertaining to voir dire for er-

rors and has found none. (XII RR gen.). Even if there was an error regarding jury

selection that had been preserved, a trial court’s decision to grant a challenge for

cause is subject to great deference by an appellate court and will be reversed “only

if a clear abuse of discretion is evident.” Gonzales v. State, 353 S.W.3d 826, 831

(Tex.Crim.App. 2011). On this record there does not appear a basis on which to

argue that a clear abuse of discretion could be shown based on potential jurors re-

sponses to questions from counsel, but, just as importantly, Mr. Shelton cannot

show that if there was an erroneous excusal of any of the potential jurors, that error

resulted in a jury being impaneled that was not lawfully constituted. Gamboa v.

State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009); Jones v. State, 982 S.W.2d



                                          5	  
386, 394 (Tex.Crim.App. 1998). Consequently, the Court would have to overrule

any argument made as to this issue on appeal. Jones, 982 S.W.2d at 393. Finally,

the record does not present any objections to statements or actions by the State that

would warrant a reversal of Appellant’s conviction on appeal. See TEX. R. APP.

PROC. 33.1; Beltran v. State, 99 S.W.3d 807, 811-12 (Tex.App.—Houston [14th

Dist.] 2003, pet. ref’d).

                       III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
                            THE VERDICT.

                       The standard enunciated in Jackson v. Virginia1 is the one by which suffi-

ciency of the evidence challenges are measured. Brooks v. State, 323 S.W.3d 893,

895 (Tex.Crim.App. 2010). That is, in order to be legally sufficient the evidence at

trial must support a rational conclusion that each element of the charged offense

was proved beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186

(Tex.Crim.App. 1993). Under this standard the record is reviewed in the light

most favorable to the verdict. Id.

                              To prove the offense alleged the State was required to prove that on or be-

fore the date in the indictment:

                       1. In Smith County, Texas;

                       2. Q'Andrew Shelton;

                       3. Knowingly possessed;
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979).

                                                                                                                                                     6	  
      4. Phencyclidine (PCP);

      5. In an amount between one and four grams.

(I CR 1); TEX. HEALTH & SAFETY CODE § 481.134.

      There was no dispute that the actions giving rise to the instant allegation oc-

curred, if at all, within the time period alleged and within Smith County. Nor was

there any argument made as to the identity of the defendant. Additionally, the evi-

dence was undisputed that the substance seized in this case was PCP and had a to-

tal weight of more than one gram. Instead, Mr. Shelton primarily challenged

whether the State had proved the element of possession.

      Possession

      To establish possession the State was required to show that Mr. Shelton ex-

ercised care, custody, or control over the narcotics. TEX. HEALTH & SAFETY CODE

§ 481.002(38). Those factors can be evidence by the defendant’s presence when a

search is conducted; whether the contraband was in plain view; the defendant’s

proximity to and the accessibility of the contraband; whether the defendant was

under the influence of contraband when arrested; whether the defendant possessed

other contraband when arrested; whether the defendant made incriminating state-

ments when arrested; whether the defendant attempted to flee; whether the defend-

ant made furtive gestures; whether there was an odor contraband; whether other

contraband was present; where the defendant owned the place where the drugs



                                         7	  
were found; whether the place where the drugs were found was enclosed; whether

the defendant was found with a large amount of cash; and whether the conduct of

the defendant indicated a consciousness of guilt. Figueroa v. State, 250 S.W.3d

490, 500 (Tex.App.—Austin 2008, pet. ref’d).

      Here, a majority of these factors support a finding that Mr. Shelton pos-

sessed the PCP. See Id. (a court will look not to the number of the factors but their

strength). Mr. Shelton was present when the search was conducted, at least some

of the PCP was found on his person, Mr. Shelton had exhibited control and custody

over the box in which the majority of the PCP was found, he had made furtive ges-

tures while initially being detained and had an odor of marijuana on his person, and

had shown behavior which could indicate a consciousness of guilt. (XIII RR 41,

43, 44, 56, 57, 60, 61, 65, 100, 103, 240). As such, considering the logical force of

this evidence, it appears that if challenged the Court would find that the State suffi-

ciently established that Mr. Shelton possessed the requisite amount of PCP. See

Hurtado v. State, 881 S.W.2d 738, 745 (Tex.App.—Houston [1st Dist.] 1994, pet.

ref’d) (standard of review); see also King v. State, 29 S.W.3d 556, 562

(Tex.Crim.App. 2002) (on appeal court will not reweigh evidence).

      Further, although some exculpatory evidence was developed (XIII RR 115,

261), on appeal the Court would also consider Mr. Shelton’s statements at the time

he was arrested that the woman who came out of the house was not involved and



                                          8	  
that the drugs in the box “were not hers.” (XIII RR 100, 103). Such statements,

indicating a consciousness of guilt, would go a long way to undermining the ex-

culpatory evidence Mr. Shelton did present and, even if the Court was inclined to

give more weight to the exculpatory evidence than the jury did, it cannot substitute

on appeal its judgment for that of the original finder of fact. Dewberry v. State, 4

S.W.3d 735, 740 (Tex.Crim.App. 1999); see also Curry v. State, 30 S.W.3d 394,

406 (Tex.Crim.App. 2000) (any inconsistencies that may be present are resolved in

favor of the verdict).

      Thus, taking the record before the Court as a whole and viewing the evi-

dence in the light most favorable to the jury’s verdict, it cannot be said on appeal

that the evidence was legally insufficient to support the judgment rendered at trial.

See Jackson, 443 U.S. at 319 (standard of review).

      IV. PUNISHMENT.

      As alleged, the offense of possession of a controlled substance is a third de-

gree felony. TEX. HEALTH & SAFETY CODE § 481.115(c). However, because the

State also established that Mr. Shelton had previously been convicted of two felony

offenses, the punishment range was enhanced to a maximum of confinement for

life. TEX. PEN. CODE § 12.42(d). Consequently, although the issue of cruel or ex-

cessive punishment was not raised at the time sentence was imposed and, there-

fore, has been waived on appeal, see TEX. R. APP. P. 33.1(a)(1); Rhoades v. State,



                                         9	  
934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719,

723 (Tex.App.—Dallas 2003, no pet.), because the fifty year sentence imposed

was within the statutory punishment range for the offense it is presumptively not

constitutionally cruel and unusual under these circumstances. Kirk v. State, 949

S.W.2d 769, 772 (Tex.App.—Dallas 1997, pet. ref’d); see also Harris v. State, 656

S.W.2d 481, 486 (Tex.Crim.App. 1983); Jordan v. State, 495 S.W.2d 949, 952

(Tex.Crim.App. 1973). The record presents no basis from which to argue that this

presumption can be overcome on direct appeal.

      V. EFFECTIVE ASSISTANCE OF COUNSEL.

      Effective assistance of counsel is to be evaluated under the standard enunci-

ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344

(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To

prevail on a claim of ineffective assistance of counsel, a defendant must show (1)

that his trial counsel’s performance fell below an objective standard of reasonable-

ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged

errors, the result would have been different. Strickland, 466 U.S. at 687-88. On

appeal, the defendant carries the burden of proving ineffective assistance by a pre-

ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.

1985). Trial counsel’s performance is not to be judged with the benefit of hind-

sight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).



                                          10	  
      With the Strickland standard in mind, counsel has reviewed the record be-

fore the court and found no conduct that would rise to the level of rendering trial

counsel’s assistance ineffective. See, e.g., Johnson v. State, 614 S.W.2d 148, 152

(Tex.Crim.App. [Panel Op.] 1981) (holding that, on appeal, courts will not second-

guess reasonable trial decisions). Although Mr. Shelton indicated he was not en-

tirely happy with his trial counsel (XVII RR 20), there were no actions or inactions

on the part of trial counsel appearing in the record available for direct appeal that

would support a claim that ineffective assistance was rendered and also, but for

that ineffective assistance, the result at trial would have been different. See Can-

non v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984) (burden is on defendant

to establish ineffective assistance); Rodriguez v. State, 899 S.W.2d 658, 665

(Tex.Crim.App. 1995) (a review of counsel’s actions looks to the record as a whole

and not merely at isolated incidents).

                         CONCLUSION AND PRAYER

      As counsel was unable to raise any arguable issues for appeal, he is required

to move for leave to withdraw.           See Stafford v. State, 813 S.W.2d 503

(Tex.Crim.App. 1991).

      WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

after affording Mr. Shelton the opportunity to review the record and file a pro se

brief should he desire to do so, accept this brief and grant the attached Motion to



                                         11	  
Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct.

1396 (1967).

                                                   Respectfully submitted,

                                                   /s/ Austin Reeve Jackson
                                                   Texas Bar No. 24046139
                                                   112 East Line, Suite 310
                                                   Tyler, TX 75702
                                                   Telephone: (903) 595-6070
                                                   Facsimile: (866) 387-0152


                         CERTIFICATE OF COUNSEL

      The attorney’s role as an advocate requires that I support my client’s appeal

to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve

Jackson, counsel of record in this appeal, do hereby state that I have diligently

searched the entire record in this cause. I have researched the law applicable to the

facts and issues contained therein, and it is my professional opinion that the record

reflects no reversible error. In conformity with the applicable law pertaining to an

appeal of this nature, I have set forth any potential grounds of error and have

briefed them to the extent possible. I have further caused a copy of this brief to be

served by certified mail on the Appellant, accompanied by a letter informing the

Appellant of the right to examine the record for the purpose of filing a pro se brief.

                                                   /s/ Austin Reeve Jackson




                                          12	  
                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this Brief was delivered to counsel

for the State by efile concurrently with its filing and a copy of the same delivered

to Appellant by certified, first-class mail.

                                                    /s/ Austin Reeve Jackson



                       CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 2,642 words.

                                                    /s/ Austin Reeve Jackson




                                           13	  
