                                                                            ACCEPTED
                                                                        01-15-00134-CR
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                  11/19/2015 8:30:28 PM
                                                                  CHRISTOPHER PRINE
                                                                                 CLERK

                   No. 01-15-00134-CR
     ______________________________________________
                                                      FILED IN
                                               1st COURT OF APPEALS
                         IN THE                    HOUSTON, TEXAS
             COURT OF APPEALS FOR THE          11/19/2015 8:30:28 PM
               FIRST DISTRICT OF TEXAS         CHRISTOPHER A. PRINE
                     AT HOUSTON                         Clerk
     ______________________________________________

              JENNIFER LEANN WATSON

                          VS.

                 THE STATE OF TEXAS
     ______________________________________________

           Appealed from the 338th District Court
                  of Harris County, Texas
                  Cause Number 1363069
     ______________________________________________

                  APPELLANT’S BRIEF
     ______________________________________________


                            RANDALL J. AYERS
                            Attorney for Appellant
                            State Bar No. 01465950
                            P.O. Box 1569
                            Houston, Texas 77251-1569
                            rjayerslaw@comcast.net (email)
                            (281) 493-6333 (telephone)
                            (281) 493-9609 (fax)




ORAL ARGUMENT WAIVED
                 IDENTIFICATION OF THE PARTIES

        Pursuant to Tex. R. App. P. 38.1(a), a complete list of the names of
all interested parties is provided below:

      1.     JENNIFER LEANN WATSON – Appellant
             14703 Red Canary Court
             Cypress, Texas 77433-6632

      2.     CHERYL BROWN – Trial Counsel for Appellant
             1314 Texas Avenue, Suite 1201
             Houston, Texas 77002-3525

      3.     RANDALL J. AYERS – Appellate Counsel for Appellant
             P.O. Box 1569
             Houston, Texas 77251-1569

      4.     BRADFORD CROCKER – Trial Counsel for State
             Harris County District Attorney’s Office
             1201 Franklin, Suite 600
             Houston, Texas 77002-1997

      5.     LAUREN BARD – Trial Counsel for State
             Harris County District Attorney’s Office
             1201 Franklin, Suite 600
             Houston, Texas 77002-1997

      6.     ALAN CURRY – Chief Appellate Counsel for State
             Harris County District Attorney’s Office
             1201 Franklin, Suite 600
             Houston, Texas 77002-1997

      7.     HONORABLE BROCK THOMAS – Trial Judge
             338th District Court
             1201 Franklin, 15th Floor
             Houston, Texas 77002-1913




                                      1
               TABLE OF CONTENTS
                                              Page

IDENTIFICATION OF THE PARTIES ………………………..….     1


INDEX OF AUTHORITIES ……………………………………..…          3


STATEMENT REGARDING ORAL ARGUMENT ………………        4


STATEMENT OF THE CASE …………………………………..…          4


ISSUES PRESENTED FOR REVIEW …………………………….        5


STATEMENT OF FACTS …………………………………………             5


SUMMARY OF THE ARGUMENT ………………………………            9


POINT OF ERROR ONE …………………………………………..           9

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT’S COMMUNITY SUPERVISION FOR COMMITTING
THE OFFENSE OF POSSESSION OF A CONTROLLED
SUBSTANCE WHEN THE EVIDENCE DID NOT PROVE ALL OF
THE NECESSARY ELEMENTS OF THAT OFFENSE.


CONCLUSION AND PRAYER …..………………………………           14


CERTIFICATE OF SERVICE …………………………………..…         15


CERTIFICATE OF COMPLIANCE ……………………………….         15

                        2
                      INDEX OF AUTHORITIES
                                                                    Page
                                 Cases

Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) …………….. 10

Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) ………………… 10

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) …………… 11, 12

Hargesheimer v. State, 182 S.W.3d 906 (Tex. Crim. App. 2006) ……… 10

Herndon v. State, 787 S.W.2d 408 (Tex. Crim. App. 1990) …………..… 12

Johnson v. State, 943 S.W.2d 83
     (Tex. App. – Houston [1st Dist.] 1997) ……………………………. 10

Jones v. State, 787 S.W.2d 96
      (Tex. App. – Houston [1st Dist.] 1990) ……………………………. 10

Nheem v. State, 129 S.W.3d 696
     (Tex. App. – Houston [1st Dist.] 2004) ……………………………. 11

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ……..... 11, 12

Shaw v. State, 622 S.W.2d 862 (Tex. Crim. App. 1981) …….………….. 10

Wester v. State, 542 S.W.2d 403 (Tex. Crim. App. 1976) …………..…… 10

                           Statutes and Rules

Tex. Health & Safety Code §481.002(38) ……………………………... 11

Tex. Health & Safety Code §481.115 ………………………………….. 11

Tex. Pen. Code §1.07(39) ………………………………………….……. 11

Tex. R. App. Proc. 38.1(a) …...………………………………………….                       1

Tex. R. App. Proc. 39.7 ………………………………………………… 4

                                    3
            STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to Tex. R. App. P. 39.7, Appellant waives oral argument.


                          STATEMENT OF THE CASE

       Appellant was indicted for possession with intent to deliver a

controlled substance. (CR 16)1. Appellant pled guilty pursuant to an agreed

plea bargain with the State for 3 years deferred adjudication community

supervision and was placed in the Felony Mental Health Court specialized

caseload. (CR 29-35, 117). The State filed a motion to adjudicate guilt

alleging Appellant had violated her conditions of community supervision.

(CR 50-51). Appellant pled not true to allegations in the motion to

adjudicate. (CR 62-63; RR-V2 12-14)2. After a hearing, the trial court found

it true that Appellant had violated her community supervision as alleged in

the motion, adjudicated her guilty, and sentenced her to 6 years in prison.

(CR 62-63, 120; RR-V2 122-123; RR-V3 19-20). Appellant filed timely

written notice of appeal. (CR 68-69, 120).




1
  CR = Clerk’s Record, Volume I of I; RR = Reporter’s Record, Volumes 1 through 4.
2
  Appellant pled not true on the record at the beginning of the adjudication hearing, as is
clearly shown in the Reporter’s Record (RR-V2 12-14); however the Clerk’s Judgment
Adjudicating Guilt incorrectly states that Appellant pled true (CR 62-63).

                                            4
                     ISSUES PRESENTED FOR REVIEW

      Did the trial court abuse its discretion when it found it true that

Appellant had violated her community supervision by committing the

offense of possession of a controlled substance where the evidence was

insufficient to prove that Appellant intentionally and knowingly possessed

the controlled substance in question?




                        STATEMENT OF FACTS

      At the adjudication hearing, Harris County Deputy Sheriff Jimmie

Norris testified that in an attempt to locate a suspect wanted on an open

felony arrest warrant from another county, he and several other deputies

went to an address in Harris County, Texas, where they had received

information that the suspect might be found. (RR-V2 39-42). Norris testified

that when they arrived at the address, they observed the front door of the

residence standing open, so they announced “Sheriff’s Office” and entered

the residence. (RR-V2 42-45). Norris testified that they heard voices coming

from a bedroom in the house, and when they went to investigate, they

observed Appellant and an adult male asleep on a bed, and two other adult

females standing next to the bed. (RR-V2 45-48). Norris testified that he


                                        5
observed an open purse on the bed next to where Appellant had been

sleeping, and that inside the purse he could see a smaller “Disney makeup

bag” that had syringes protruding from it, as well as plastic baggies

containing a grayish white powder that later tested positive as

methamphetamine weighing 1.963 grams. (RR-V2 49-52, 70-72). Norris

testified that Appellant’s identification was subsequently located in a wallet

found inside the same purse. (RR-V2 52-53). Norris testified that

Appellant’s four children were in another part of the residence, and that

when everyone in the residence denied any knowledge or ownership of the

methamphetamine, Appellant was arrested and charged with possession of

the methamphetamine. (RR-V2 48-55).

      Chris Hernandez, Appellant’s boyfriend, testified that he was asleep

alongside of her in the bed when the deputies came into the residence. (RR-

V2 75-76). Hernandez testified that the other two females in the bedroom

when the deputies came in were his cousin Jessica Matou and an

acquaintance named Desiree Haas, and the he knew Desiree Haas to be a

drug addict who abused, among other things, methamphetamine. (RR-V2

76-77).   Hernandez    testified   that   he   did   not   believe   that   the

methamphetamine was Appellant’s, and that when asked by the deputies




                                      6
both he and Appellant denied any knowledge of the methamphetamine, as

did Desiree Hass and his cousin Jessica Matou. (RR-V2 79-82).

      Mileah Alvarez, Appellant’s 14-year old daughter, testified that she

was also present when the deputies came into the residence, and that it was

she who had let Desiree Haas, whom she knew as a former baby-sitter and

acquaintance of her mother, into the residence earlier that day. (RR-V2 86-

88). Alvarez testified that when Hass arrived, she had noticed that Haas had

in her possession a “little Mickey Mouse” pencil bag, which Alvarez

recognized as something that she believed Hass had stolen from her

previously. (RR-V2 87-88). Alvarez testified that Haas went into the

bedroom where her mother, Appellant, was asleep. (RR-V2 88-90). Alvarez

testified that she then went to sleep in her room until the deputies awakened

her sometime later. (RR-V2 89). Alvarez testified that when the deputies

asked everyone about the methamphetamine in the Mickey Mouse bag, Haas

claimed it belonged to Chris Hernandez, and repeatedly stated that she could

not “take the charge because if I take the charge, my brother will kill me,”

and that Haas was “real jumpy and real twitchy and real frantic.” (RR-V2

89-92).

      Appellant testified that she was asleep in bed when the deputies came

into her residence, and that she did not know that Desiree Haas and Jessica



                                     7
Matou were even in her residence as they had arrived after she had gone to

sleep. (RR-V2 93-101). Appellant testified that she had no knowledge of the

methamphetamine found inside her purse. (RR-V2 99-100, 106-107).

Appellant testified that she knew Desiree Haas had a history of drug use,

including methamphetamine, and that Haas appeared to Appellant to be “on

drugs” at the time. (RR-V2 101-105). Appellant testified that when asked by

the deputies Haas denied that the methamphetamine was hers and said it

belonged to Chris Hernandez, and that when Appellant’s daughter asked

Haas to tell the deputies whose methamphetamine it really was, Haas stated,

“Because if I do, my brother will kill me.” (RR-V2 108-109).

      Sheena Poole testified that she was Appellant’s probation officer in

the Felony Mental Health Court program. (RR-V2 17-19). Poole testified

that Appellant failed to report as scheduled on four occasions, and failed to

submit a urine sample on three occasions. (RR-V2 22-25). Poole further

testified that Appellant was also in arrears on paying various fees and costs

totaling $154.50. (RR-V2 25-26). Poole testified that for these reasons,

Appellant had failed to successfully participate in the Felony Mental Health

Court program. (RR-V2 26).




                                     8
                   SUMMARY OF THE ARGUMENT

      The trial court abused its discretion when it found it true that

Appellant had violated her community supervision by committing the

offense of possession of a controlled substance where the evidence did not

prove that Appellant intentionally and knowingly possessed the controlled

substance in question.



                         POINT OF ERROR ONE

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT’S COMMUNITY SUPERVISION FOR COMMITTING
THE OFFENSE OF POSSESSION OF A CONTROLLED
SUBSTANCE WHEN THE EVIDENCE DID NOT PROVE ALL OF
THE NECESSARY ELEMENTS OF THAT OFFENSE.

         RELEVANT FACTS, AUTHORITIES & ARGUMENT

      In Appellant’s case, the State’s motion to adjudicate guilt alleged that

Appellant violated the terms and conditions of her community supervision

by committing the offense of possession of a controlled substance, more

specifically by:

      “Committing an offense against the State of Texas, to-wit; on or about
July 15, 2104, in Harris County, Texas, JENNIFER LEANN WATSON,
hereafter styled the Defendant, did then and there unlawfully intentionally
and     knowingly      possess    a     controlled     substance,    namely
METHAMPHETAMINE, weighing more than 1 gram and less than 4 grams
by aggregate weight, including any adulterants and dilutants.” (CR 50).




                                      9
      A defendant on deferred adjudication supervision has the right to

appeal a trial court’s determination to proceed with an adjudication of guilt,

as well as all proceedings following an adjudication of guilt, in the same

manner as a revocation of regular community supervision or probation. Tex.

Code Crim. Proc. Art. 42.12 § 5(b); Hargesheimer v. State, 182 S.W.3d

906, 910-913 (Tex. Crim. App. 2006). The decision on whether or not to

revoke community supervision rests within the sound discretion of the trial

court, and will not be reversed on appeal absent abuse of that discretion.

Wester v. State 542 S.W.2d 403, 405 (Tex. Crim. App. 1976). The burden of

proof in a revocation proceeding is on the State, and is measured by a

preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.

Crim. App. 1993); Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App.

1981). The law is clear that the State bears the burden of proving every

element of an alleged violation of community supervision relied upon for

revocation. Shaw, 622 S.W.2d at 863; Johnson v. State, 943 S.W.2d 83, 85

(Tex. App – Houston [1st Dist.] 1997), citing Jones v. State, 787 S.W.2d 96,

97 (Tex. App. – Houston [1st Dist.] 1990). When the State fails to meet its

burden of proving the alleged violation of community supervision, the trial

court abuses its discretion in revoking that community supervision. Cardona

v. State, 665 S.W.2d 492, 493-494 (Tex. Crim. App. 1984).



                                     10
      Thus, in Appellant’s case, the State was required to prove that

Appellant committed the offense of possession of a controlled substance as

alleged in the motion to adjudicate. One of the required elements to prove

possession of a controlled substance is proof that the accused intentionally or

knowingly possessed the controlled substance. Tex. Health & Safety Code

§481.115. “Possession” means actual care, custody, control, or management.

Tex. Health & Safety Code §481.002(38); Tex. Penal Code §1.07(39). In

order to prove unlawful possession of a controlled substance, the State must

prove that: (1) the accused exercised actual care, custody, control, or

management over the substance; and (2) that the accused affirmatively knew

the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402,

405-406 (Tex. Crim. App. 2005). Further, when the accused is not in

exclusive possession of the place where a controlled substance is found, the

State must prove additional independent facts and circumstances that

affirmatively link the accused to the knowing possession of the contraband in

such a way that it can be concluded that the defendant had actual knowledge

of the contraband’s existence as well as knowingly exercising actual control

over it. Evans v. State, 202 S.W.3d 158, 161-162 (Tex. Crim. App. 2006);

Poindexter, 153 S.W.3d at 406; Nhem v. State, 129 S.W.3d 696, 699-700

(Tex. App. – Houston [1st Dist.] 2004). Mere presence of the accused at the



                                      11
location of the contraband, or even knowledge that someone else is in

possession of the contraband at the location, does not make the accused a

party to the possession. Herndon v. State, 787 S.W.2d 408, 410 (Tex. Crim.

App. 1990). In addition to mere presence, the State must establish sufficient

“affirmative links” between the accused and the contraband which are more

than fortuitous. Evans, 202 S.W.3d at 161. These “affirmative links” are

necessary to protect the otherwise innocent bystander – a relative, friend,

spouse, or roommate for example – from conviction based solely upon the

her fortuitous proximity to someone else’s illegal activities. Evans, 202

S.W.3d at 161-162; Poindexter, 153 S.W.3d at 406.

      In Appellant’s case, the record is clear that Appellant was not in

exclusive control of the residence in which the methamphetamine was

found. There were three other adults present, and it is undisputed that

Appellant was asleep when the deputies entered the residence and found the

purse from which the methamphetamine was recovered. (RR-V2 39-62). It is

likewise undisputed that two of the other adults present, Desiree Haas and

Jessica Matou, were both awake and were seen standing next to the bed on

which the purse was found, and that Deputy Norris saw them “fiddling with

stuff” … “digging in purses and bags and stuff’ … “just plundering” in the

vicinity of the bed where the purse was located. (RR-V2 46-49, 56-57).



                                     12
Deputy Norris also noticed that both Desiree Haas and Jessica Matou had

visible needle marks on their arms indicative of drug use, and that Appellant

did not have any such marks. (RR-V2 60-62). Further, there is testimony in

the record that Desiree Haas was seen in possession of the “Mickey Mouse”

bag wherein the methamphetamine was found prior to going into the

bedroom where Appellant was asleep, and that Haas appeared to be under

the influence of drugs, and made statements somewhat indicative of guilt.

(RR-V2 86-92, 103-104, 108-109). It is clear then from the facts and

circumstances that there is little beyond Appellant’s mere presence to link

her to the methamphetamine, and in fact more than ample evidence to

affirmatively link Desiree Haas to the methamphetamine.

      Since the evidence before the trial court was insufficient to prove the

independent facts and circumstances necessary to affirmatively link

Appellant to the knowing possession of the methamphetamine in such a way

that it could be concluded that Appellant had both actual knowledge of the

methamphetamine’s existence as well as that Appellant knowingly exercised

actual control over it, and in fact ample evidence to the contrary, the State

failed to prove a required element of the offense of possession of a

controlled substance, and thus it was an abuse of discretion for the trial court




                                      13
to find that Appellant had violated her community supervision by

committing the offense of possession of a controlled substance.




                     CONCLUSION AND PRAYER

      For the reasons set out in the foregoing point of error, Appellant prays

that this Honorable Court of Appeals will reverse Appellant’s conviction and

sentence and remand this case back to the trial court for a new trial or such

other relief as this Honorable Court deems appropriate.

                                      Respectfully submitted,

                                      /s/ Randall J. Ayers
                                      RANDALL J. AYERS
                                      Attorney for Appellant
                                      State Bar No. 01465950
                                      P.O. Box 1569
                                      Houston, Texas 77251-1569
                                      rjayerslaw@comcast.net (email)
                                      (281) 493-6333 (telephone)
                                      (281) 493-9609 (fax)




                                     14
                      CERTIFICATE OF SERVICE

      I certify that I served the foregoing Appellant’s Brief on the District

Attorney of Harris County, Texas, by sending a copy to Mr. Alan Curry,

Chief of the Appellate Division, Harris County District Attorney’s Office,

via electronic service to curry_alan@dao.hctx.net on November 19, 2015.

                                       /s/ Randall J. Ayers
                                       RANDALL J. AYERS
                                       Attorney for Appellant
                                       State Bar No. 01465950
                                       P.O. Box 1569
                                       Houston, Texas 77251-1569
                                       rjayerslaw@comcast.net (email)
                                       (281) 493-6333 (telephone)
                                       (281) 493-9609 (fax)


                   CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9(i)(3) of the Texas Rules of Appellate Procedure I

certify that this document contains a total of 2,799 words.

                                       /s/ Randall J. Ayers
                                       RANDALL J. AYERS
                                       Attorney for Appellant
                                       State Bar No. 01465950
                                       P.O. Box 1569
                                       Houston, Texas 77251-1569
                                       rjayerslaw@comcast.net (email)
                                       (281) 493-6333 (telephone)
                                       (281) 493-9609 (fax)




                                      15
