                                                                          ACCEPTED
                                                                      03-15-00232-CR
                                                                              7803373
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                11/12/2015 2:52:54 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                  NO. 03-15-00232-CR
          IN THE THIRD COURT OF APPEALS
                                                    FILED IN
                                             3rd COURT OF APPEALS
                  AUSTIN, TEXAS                   AUSTIN, TEXAS
                                             11/16/2015 4:13:54 PM
                                                 JEFFREY D. KYLE
                                                      Clerk


ALICIA NICOLE PEREZ,
                      Appellant
VS.


THE STATE OF TEXAS,
                      Appellec




                APPELLANT’S BRIEF




                                  SUSAN SCHOON
ORAL ARGUMENT                     Schoon Law Firm, P.C.
NOT REQUESTED                     200 N. Seguin Avenue
                                  New Braunfels, Texas 78130
                                  PH: (830) 627-0044
                                  FAX: (830) 620-5657
                                  susan@schoonlawflrm.com
                                  State Bar No. 24046803

                                  Attorney for Appellant
               IDENTITY OF PARTIES AND COUNSEL



Appellant:                  Alicia Nicole Perez

Atto rney for Appellant:    Susan Schoon
(on appeal)

Attorney for Appellant:     Veronica Legaretta
(at trial)

Attorney for State:         Daniel Palmitier, Assistant District Attorney


Trial Court:                Honorable Bruce Boyer
                            Judge
                            207th Judicial District
                        TABLE OF CONTENTS

IDENTITY OF PARTIES                                     i

1NIJEX OF AUTHORITIES                              iii

STATEMENT OF THE CASE                               1

STATEMENT OF FACTS                                  2

SUMMARY OF ARGUMENT                                 4

PROFESSIONAL EVALUATION OF THE RECORD                  8

PRE-TRIAL OBJECTIONS                                   5

VOIR DIRE                                          5

TRIAL OBJECTIONS                                   6

PROCEDURAL TRIAL OBJECTIONS                       10

JURY CHARGE                                       11

    Narrowing Party Liability                     11
    Joint Possession                              12
    Objection to the Law of Parties Instruction    17

SUFFICIENCY OF THE EVIDENCE                       18

CONCLUSION                                        18

PRAYER                                            18

CERTIFICATE OF COMPLIANCE                         19

CERTIFICATE OF SERVICE                            19




                                      11.
                        INDEX OF AUTHORITIES

 CASES                                                       PAGES
 Abdnor v. State,
 871 S.W.2d 726, 731 (Tex.Gr.App. 1994)                         12

Alrnanza v. State,
 686 S.W.3d 157 (Tex.Crim.App. 1985)                            14

Anders v. Caflfornia,
 386 U.S. 738 (1967)                                             4

Arline v. State,
721 S.W.2d 348 (Tex. Grim. App. 1986)                           14

Barron v. State,
353 S.W.3d 879 (Tex. Grim. App. 2011)                           14

Bloys v. State,
2005 Tex. App. LEXIS 7188 (Tex. App. Austin Aug. 31, 2005)       7

Brown v. State,
122 S.W.3d 794 (Tex. Grim. App. 2003)                           14

Celis v. State,
416 S.W.3d 419 (Tex. Grim. App. 2013)                           13

Cude v. State,
716 S.W.2d46 (Tex. Grim. App. 1986)                             14

Dinkins v. State,
894 S.W.2d 330 (Tex. Grim. App. 1995)                           12

Evans v. State,
202 S.W.3d 158 (Tex. Grim. App. 2006)                           10

Flores v. State,
440 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2013)           13



                                        111.
 Gainous v. State,
 436 S.W.2d 137 (Tex.Crim.App. 1969)                                   4

 Gordon v. State,
 No. 02-11-00413-CR, 2012 Tex. App. LEXIS 7993
 (Tex. App.—Fort Worth Sept. 20, 2012, no. pet.)                   14

 Grjffln v. State,
 614 S.W.2d 155 (Tex.Crim.App. 1981)                              18

 Guzinan v. State,
 955 S.W.2d 85 (Tex. Crim. App. 1997)                              7

Hawkins v. State,
656 S.W.2d 70 (Tex. Crim. App. 1983)                              13

Jacobs v. State,
787 S.W.2d 397 (Tex. Crim. App. 1990)                              5

Jackson v. Virginia,
443 U.S. 307 (1979)                                               18

Kirsch v. State,
357 S.W.3d 645 (Tex. Crim. App. 2012)                             13

Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990)                           8, 9

Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005)                             11

Ross v. State,
2013 Tex. App. LEXIS 44 (Tex. App. Fort Worth Jan. 4, 2013)       14

Russell v. State,
749 S.W.2d 77 (Tex. Crim. App. 1988)                          12, 13

Stafford v. State,
813 S.W.2d 503 (Tex.Crim.App. 1991)                              18


                                        iv.
State v. Mechier,
153 S.W.3d 435 (Tex. Crim. App. 2005)         8

Stull v. State,
772 S.W.2d 449 (Tex. Crim. App. 1989)         7

Vasquez v. State,
389 S.W.3d 361 (Tex. Crim. App. 2012)        11

Whaley v. State,
717 S.W.2d 26 (Tex. Crim. App. 1986)         13



STATUTES ANI~ RULES
TEX.CODECRIM.PROArt. 14.01                    7
TEX.CODE CRTM.PRO Art. 36.14                 12
TEx.R.Eviix4O3                              8,9
TEX.PENALCODEAnrL Art. 6.01(b)               13




                                       V.
    TO THE HONORABLE JUSTICES OF TUE COURT OF APPEALS:

           COMES NOW ALICIA PEREZ, Appellant in this cause, by and through her

    attorney of record, Susan Schoon, and pursuant to the provisions of

    TEx.R.APP.PR0. 38, et seq., files this brief on appeal.

                                STATEMENT OF TUE CASE

          Alicia Perez, Appellant was indicted in Cause Number CR20 12-603 for

    possession of a controlled substance. (CR 25)1

          The jury found Appellant guilty, and the trial court assessed punishment at

    four years in the Texas Department of Corrections/Institutional Division. That

    sentence was suspended, and Appellant was placed on probation for four years.

    (CR 104) Notice of Appeal was filed on April 17, 2015 (CR 95) The clerk’s record

was filed on 6/12/15 and the reporter’s record was filed on 7/17/15. Three motions

for extension to file brief were granted by this court, with a final one submitted

with this brief on this the l2t~~ day of November, 2015.




1   CR refers to Clerk’s Record; RR refers to Reporter’s Record.

                                                                                        1
                             STATEMENT OF FACTS

       At approximately 4:00 A.M. on June 25, 2012, Officer Chris Scott made a

 traffic stop on a vehicle in which Appellant was a front-seat passenger. (RR, Vol.

 3, p. 28) As he was driving behind the car, he noticed “a lot of movement” from

 the front seat occupants. (RR, Vol. 3, p. 26) After the car stopped and the officer

 approached, he noticed a third person was “passed out” in the back seat. (RR, Vol.

3, pp. 27-28) The driver did not have a driver’s license, and as Officer Scott was

speaking with her, he saw a pipe sticking out of the area between the seat and the

console. (RR, Vol. 3, p. 29) After calling for back-up, both the driver and

Appellant were told to get out of the car. (RR, Vol. 3, p. 33, 35) The driver was

searched, and found to be in possession of a bag of what was suspected to be

methamphetamine. (RR, Vol. 3, p. 34) Appellant was detained and handcuffed

while the officers woke up the back-seat passenger and got him out of the car. (RR,

Vol. 3, pp. 35, 38) The officer immediately noticed a black magnetic box, typically

used for hiding keys, sticking out of his front pocket. (RR, Vol. 3, p. 98; St.Ex. 2D)

The box contained methamphetamine. (RR, Vol. 3, p. 40) Appellant spoke up and

told the officer that the box belonged to her. (RR, Vol. 3, p. 41-43) When asked,

she said that it contained methamphetamine. (RR, Vol. 3, pp. 41, 43, 54-55, 99;

St.Ex.3) Syringes, butane lighters and “q-tips,” which the officer testified were

typically used for administering drugs, were found within Appellant’s purse. (RR,
                                                                                       2
Vol 3, Pp. 79, 100, 110, 190) A zippered, pink pouch containing a spoon with

“residue” and burn marks was found in the car. (RR, Vol. 3, p. 80) All three

occupants of the vehicle were arrested for possession of a controlled substance. At

trial, the occupant of the back seat, Darwin Heidemeyer testified that he did not

know how the black box got into his pocket. (RR, Vol. 3, P. 188) Appellant

testified that she did not put it into his pocket, but claimed it to keep him from

getting into trouble. (RR, Vol. 4, pp. 75-76) At trial, Appellant admitted that she

knew there were drugs in the car, and admitted having planned to use them. (RR,

Vol. 4, p. 101)




                                                                                      3
                          SUMMARY OF ARGUMENT

Professional Evaluation of the Record

      Counsel has reviewed the appellate record in this cause and reluctantly

concludes that as a matter of professional judgment, the record contains no

reversible error and no jurisdictional defects. Where counsel concludes that there

are no arguable grounds for reversal, she is required to present a professional

evaluation of the record demonstrating why there are no arguable grounds to be

advanced. Anders v. Caflfornia, 386 U.s. 738 (1967); Gainous v. State, 436

5.W.2d 137 (Tex.Crim.App. 1969).




                                                                                     4
                              PRE-TRIAL OBJECTIONS

          There were no pre-trial motions heard, other than a motion in limine filed by

Appellant regarding extraneous offenses, which the trial court granted. (RR, Vol. 2,

p. 215) A motion to suppress evidence was carried with the trial. It is discussed in

the “Trial Objections” section of this brief.

                                       VOIR DIRE

          Appellant had no objection to the state’s challenge for cause of one

venireperson. All of Appellant’s challenges for cause were granted, except one.

(RR, Vol. 2, p. 199) However, even if this were error, it was not preserved

because Appellant did not request additional peremptory strikes, or identifS’ an

objectionable juror that was seated on the panel. See Jacobs v. State, 787 S.W.2d

397 (Tex. Crim. App. 1990).

      Appellant made two separate objections during the state’s voir dire. (RR,

Vol. 2, pp. 68, 95). The parties approached the bench; however, when asked by the

court reporter whether the discussion needed to be on the record, both times

defense counsel responded that it did not. When the state objected to a question

asked by defense counsel during voir dire, again no record was made of the

discussion or ruling. (RR, Vol. 2, p. 132). Therefore, nothing was preserved for

appeal.


                                                                                     5
                              TRIAL OBJECTIONS

Motion to Suppress Evidence

       Appellant moved to suppress all evidence stemming from her arrest due to

lack of probable cause for the arrest. The trial court held a hearing to consider the

motion during the trial, after Officer Scott had testified. (RR, Vol. 3, p. 171) After

hearing evidence, the trial court denied the motion to suppress. (RR, Vol. 3, p. 176)

Appellant’s argument was that at the point that she was placed under arrest, Officer

Scott had not linked her to the box of methamphetamine found hanging out of

Darwin Heidemeyer’s pocket. (RR, Vol. 3, p. 176) Her argument was that only

after Officer Scott placed Appellant under arrest did he question her about which

box she had been referring to when she had claimed that it was hers. The state

argued, and the trial court agreed that Appellant had claimed the box containing

methamphetamine while detained and handcuffed, but prior to being placed under

arrest, giving Officer Scott the necessary probable cause. Further, they argued that

Officer Scoff knew which box she was referring to, and what it contained because

he had already opened it and recognized the methamphetamine. (RR, Vol. 3, p.

40-41) After he placed the box on the back of the car, Appellant volunteered that it

was hers, and he then read her the Miranda warning. (RR, Vol. 3, p. 41-43) His

continued questioning after he placed her under arrest and gave her Miranda

warnings simply served to further his investigation. (RR, Vol. 3, pp. 173-176)
                                                                                        6
       A peace officer may arrest an offender without a warrant for any offense

 committed in his presence. TEx. CODE CRIM. PROC. Ann. Art. 14.01.

The test for probable cause for a warrantless arrest is: “Whether at that moment

the facts and circumstances within the officer’s knowledge and of which [he] had

reasonably trustworthy information were sufficient to warrant a prudent man in

believing the arrested person had committed or was committing an offense.”

Guzinan v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) citing Stull v. State,

772 S.W.2d 449, 451 (Tex. Crim. App. 1989).

       In Bloys v. State, the defendant admitted to the officer that he was

unlawfully carrying a weapon in his car. This Court held that “appellant’s

admission that he was carrying a handgun in his vehicle was sufficient to give

probable cause for his arrest.   .   .“   2005 Tex. App. LEXIS 7188, 2005 WL2094740

(Tex. App. Austin Aug. 31, 2005)(not designated for publication).

      Here, Officer Scott had seen what he believed to be methamphetamine, and

Appellant volunteered that it was hers. Similar to Bloys, Appellant’s admission

would provide the necessary probable cause for her arrest.

Objection to State’s Exhibits 7 and 8

      Defendant objected to the admission of State’s Exhibits 7 (a pink zippered

pouch) and 8 (a spoon found within the pouch), arguing that because the items

could not be linked to her, their admission was prejudicial and irrelevant. (RR, Vol.
                                                                                    7
 3, pp. 106-108) The trial court treated this as an objection under Rule 403 of the

 Texas Rules of Evidence, stating for the record, “the question is if it’s prejudicial

 to the point where it outweighs its probative value.” (RR, Vol. 3, p. 108)

 Additionally, defendant objected that State’s Exhibit 7 contained hearsay because

 of the initials “CL” on the pink bag. The court overruled both objections and

instructed the jury to disregard any writing on State’s Exhibit 7.

       A trial court is entitled to broad discretion in ruling on a Rule 403 objection.

State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Quoting

Montgomery v. State, the Court referred to two significant rationales for affording

the trial court this broad discretion: “First, Rule 403’s language implies that a

determination under this rule is inherently discretionary with the trial court. Rule

403 provides, in pertinent part, that relevant evidence ‘may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice.’

TEX. Rui~E EvID. 403. The inclusion of the word ‘may’ displays the drafter’s intent

to vest the trial courts with substantial discretion. Second, the trial court is in a

superior position to evaluate the impact of the evidence. Unlike the trial court, an

appellate court ‘cannot weigh on appeal    ...   the intonation and demeanor of the

witnesses preceding the testimony in issue       ...   nor can we determine the emotional

reaction of the jury to other pieces of evidence        . . ..“   Id. at 439 quoting Montgomery

v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).
       An analysis under Rule 403 includes at least four factors: (1) the

 probative value of the evidence; (2) the potential to impress the jury in some

 irrational yet indelible way; (3) the time needed to develop the evidence; and (4)

 the proponent’s need for the evidence. Montgomery at 389-90. While the trial court

in this case did not specifically mention these factors, it is clear that his ruling

admitting the evidence was not an abuse of discretion and would not be disturbed

on appeal. The probative value of the evidence was in what the items contained

and for what they were used. Both Officer Kuhl and Darwin Heidemeyer testified

that they were used for injecting drugs. (RR, Vol. 3, pp. 190-9 1) They were found

in the car in which appellant was a passenger, next to the console on the driver’s

side, but in appellant’s reach. (RR, Vol. 3, p. 80) The probative value was in

connecting Appellant and the others in the car to drug use. This factor would

weigh in favor of admission. There was no clear danger of impressing the jury in

an irrational manner, since the jury was provided an explanation for their probative

value, and told where the items were found in the vehicle. This factor would

weigh in favor of admission, as would the third factor—the time to develop the

evidence was minimal. The final factor—the proponent’s need for the evidence

would likely favor admission, as well. Appellant volunteered at the scene that the

drugs found in Darwin Heidemeyer’s pocket were hers. However, at trial, she

argued that she had lied to protect Darwin, and that the drugs were really his. (RR,
 Vol. 4, pp. 75-76) Therefore, any additional evidence of thugs or drug

 paraphernalia, especially in the vicinity of Appellant would be necessary to link

 her to the contraband. “Mere presence at the location where drugs are found is

 thus insufficient, by itself; to establish actual care, custody, or control of those

 drugs. However, presence or proximity, when combined with other evidence,

either direct or circumstantial (e.g.,” links”), may well be sufficient to establish that

element beyond a reasonable doubt. It is, as the court of appeals correctly noted,

not the number of links that is dispositive, but rather the logical force of all of the

evidence, direct and circumstantial. Evans v. State, 202 S.W.3d 158, 162 (Tex.

Crim. App. 2006)

       Therefore, in light of these factors, it would be unlikely that the trial court’s

ruling admitting the evidence would be deemed an abuse of discretion.

                      PROCEDURAL TRIAL OBJECTIONS

       Appellant made several procedural objections throughout the trial, none of

which rose to the level of error and/or harm. They were as follows: 1) “Hearsay”

and “mischaracterization of evidence during state’s opening;” (RR, Vol. 3, p. 11-

14) 2) “Asked and answered;” (RR, Vol. 3, p. 36) 3) “Nonresponsive;” (RR, Vol.

3, p. 37-3 8) 4) “Nonresponsive;” (RR, Vol. 3, p. 137) and 5) “Relevance.” (RR,

Vol. 3, p. 138)


                                                                                        10
                                  JURY CHARGE

       Appellant had a number of objections to the jury charge, two of which

constituted error, but caimot be shown to have resulted in harm.

       In reviewing a jury charge, the court must first determine if error occurred.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found, the

Court then determines whether sufficient harm resulted from the error to require

reversal. See Ngo, 175 S.W.3d at 743.

NARROWING PARTY LIABILITY

      First, Appellant made a request that the application paragraph of the jury

charge narrow the party liability acts to only those shown by the evidence. This

request was denied, and this was error. (RR, Vol. 4, p. 55-56, 60-6 1).

      In Vasquez v. State, the Court of Criminal Appeals was clear:

            In sum, a general reference to the law of parties in the application
            paragraph is sufficient and is not error when the defendant does not
            object and request a narrowing of the specific statutory modes of
            conduct that constitute party liability—whether he “solicited,
            encouraged, directed, aided or attempted to aid” another specified
            person to commit the offense. But if the defendant does request that
            the application paragraph refer only to those specific party-liability
            acts that are supported by the evidence, then he is entitled to such a
            narrowing. The failure to narrow the specific modes of party-liability
            conduct when properly requested is reversible error if the defendant
            has suffered actual harm to his rights.
                                389 S.W.3d 361, 368-69 (Tex. Crim. App. 2012)



                                                                                   11
 JOINT POSSESSION

        Second, Appellant objected to the following paragraphs in the abstract

 portion of the jury charge regarding possession: “Possession is a voluntary act if

the possessor knowingly obtains or received the thing possessed or is aware of his

control of a thing for a sufficient time to allow him to terminate his control,” and

“Possession of contraband need not be exclusive to support a conviction of the

unlawfUl possession of a controlled substance; evidence showing an accused

jointly possessed contraband with another is sufficient.” Her objection to these

two paragraphs were that they were “improper as to their comment on the weight

of the evidence.” (RR, Vol. 4, p. 6-7; CR 84-85) The objections were overruled.

       The trial court must charge the jury on the “law applicable to the case,”

which requires that the jury be instructed on each element of the offense charged.

See TEX. CODE CRIM. PROC. art. 36.14; Abdnor v. State, 871 S.W.2d 726, 731

(Tex.Cr.App. 1994); Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App.

1995). By statute, the trial court must deliver to the jury a written charge “not

expressing any opinion as to the weight of the evidence, not summing up the

testimony [or] discussing the facts.” TEx. CODE Clutvf. PROC. art. 36.14

      The Court of Criminal Appeals, citing Black’s Law Dictionary, defines a

comment upon the evidence as meaning that the “trial judge is prohibited from

conveying to [the] jury [the] trial judge’s personal opinion as to the truth or falsity
 of any evidence.   .   .“   Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988).

 A charge that assumes the truth of a controverted fact issue comments on the

 weight of the evidence. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App.

 1986). An instruction is a comment on the weight of the evidence if it singles out a

particular fact and instructs the jury it may consider that fact in determining an

issue in the case. Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983).

       More specifically, the Court of Criminal appeals has held that ifajury

instruction or definition originates from the penal code, it is “generally permitted

because it is the applicable statute and, therefore, the ‘applicable law,’ as required

by Article 36.14.” Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013), citing

Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). “By contrast, it is

generally impermissible to instruct on terms not statutorily defined, and the trial

court instead must permit the jury to construe them according to the rules of

grammar and common usage.” Id; Flores v. State, 440 S.W.3d 180, 195 (Tex.

App.—Houston [14th Dist.] 2013)(overruled on other grounds).

      Here, we have one of each. The first paragraph is taken out of the Penal

Code: “Possession is a voluntary act if the possessor knowingly obtains or

receives the thing possessed or is aware of his control of the thing for a sufficient

time to permit him to terminate his control.” TEx. PENAL CODE Ann. Art. 6.0 1(b).

The second paragraph, “Possession of contraband need not be exclusive to support
 a conviction of the unlawfiil possession of a controlled substance; evidence

 showing an accused jointly possessed contraband with another is sufficient” is not

 derived from any statute. Instead, it is a rule for assessing the sufficiency of the

 evidence. Ross v. State, 2013 Tex. App. LEXIS 44, 2013 WL 43992 (Tex. App.

 Fort Worth Jan. 4, 201 3)(not designated for publication) citing Gordon v. State,

No. 02-11-00413-CR, 2012 Tex. App. LEXIS 7993, 2012 WL4121 147, *2n.14

 (Tex. App.—Fort Worth Sept. 20, 2012, no. pet. h.) (mem. op., not designated for

publication) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986), for

the proposition that proof ofjoint possession is sufficient to prove possession).

       “Texas courts are forbidden from instructing the jury on any presumption or

evidentiary sufficiency rule that does not have a statutory basis.” Ross at *14,

quoting Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003). Thus, the

trial court erred by including the “joint possession” definition in the jury charge.

HARM

       Because Appellant objected, she is entitled to a new trial if the errors are not

harmless, but “calculated to injure the rights of the defendant.” Ahnanza v. State,

686 S.W.3d 157, 171 (Tex.Crim.App. 1985); Barron v. State, 353 S.W.3d 879, 883

(Tex. Crim. App. 2011)(quotingArline v. State,721 S.W.2d 348, 351 (Tex. Crim.

App. 1986) (“[TIhe presence of any harm, regardless of degree, which results from

preserved charging error, is sufficient to require a reversal of the conviction.”)).
                                                                                        14
       In reviewing for harm, the appellate court considers all of the evidence, the

 entire jury charge, and the parties’ arguments. Louis, 393 S.W.3d at 271, 272.

       The jury heard evidence and watched the video of the traffic stop and

 subsequent arrest. (St.Ex. 3 & 9; Def.Ex.2) In addition to claiming the

methamphetamine as her own, in the video from the patrol car, Appellant says that

she should have thrown the drugs from the car, and that she hopes she does not

have anything on her. (RR, Vol. 4, pp. 85, 95)

       Appellant’s testimony was particularly damaging to her defense. Under

cross-examination from the state, she admitted two times having lied during

her direct testimony. (RR, Vol. 4, p. 80, 91) One of the lies concerned whether she

knew there were drugs in the car. On direct, she said she did not know, but under

cross, she admitted that she did know, and further knew it was methamphetamine.

(RR, Vol. 4, p. 83, 91) Appellant admitted that she had needles commonly used to

shoot methamphetamine in her purse, as well as “q-tips” used to filter the drug, and

butane lighters. (RR, Vol. 4, p. 93) Finally, under cross, she admitted that she

had planned to get high with her friends that night (RR, Vol. 4, p: 101)

      This testimony was especially harmful in light of her defense—that she had

lied to the officer and claimed the drugs, even though they were not hers, to keep

her boyfriend from getting in trouble. (KR, Vol. 4, pp. 75-76)


                                                                                     15
       The jury was charged on three alternate theories of appellant’s guilt: 1) that

she was guilty as the primary actor; 2) that she was guilty as a party, in that she

intended to assist another party to possess methamphetamine and encouraged,

solicited, directed, aided or attempted to aid in possession of methamphetamine; or

3) that she, with the requisite culpability, caused or aided an innocent or non-

responsible party to engage in the prohibited conduct. (CR 84-8 8)

      Based on the evidence and testimony, it is unclear how the failure to narrow

the acts of party liability—whether she encouraged, solicited, directed, aided or

attempted to aid—caused harm to Appellant because of the three alternative means

charged. As the State pointed out in their closing:

      When you claim ownership of methamphetamines, when you’re carrying a
      meth kit in your purse, when you’re carrying syringes in your purse,
      when you admit to knowing about the methamphetamine in the vehicle, and
      you admit that your intent was to get high that night, that, ladies and
      gentlemen, is possession of a controlled substance in the state of Texas.

      When you put methamphetamine on another person, that’s possession of a
      controlled substance in the state of Texas.

     And when you aid, attempt to aid, encourage, solicit someone else to commit
     the offense of possession of a controlled substance, that’s also committing
     the offense of possession of a controlled substance.
                                                   (RR, Vol. 4, p. 113)




                                                                                      16
 OBJECTION TO THE LAW OF PARTIES iNSTRUCTION

       Appellant objected to the inclusion ofjury instructions regarding the law of

parties. (RR, Vol.4, p. 10-11) Her argument was that since Darwin Heidemeyer

claimed both at the time of the event, and at trial that he had no idea the drugs had

been placed in his pocket while he was sleeping, there was no evidence from which

the court could determine that two or more persons actively participated in

committing the offense. “The defendant cannot aid in the commission of an

offense if Darwin didn’t—if the other party did not know it was being committed.”

(RR, Vol. 4, p. 11) The trial court overruled the objection, and instructed the jury

on the law of parties. (CR 85-86)

      Appellant’s argument ignores her own testimony that, although she did not

place the drugs in Darwin Heidemeyer’ s pocket, she was planning to get high that

night with the other people in the car. (RR, Vol. 4, p. 101) From that testimony, as

well as her statements from the patrol car—that she hoped she didn’t “have

anything on me,” and that she should have thrown the drugs out of the car—

as well as her admission that she lied on the stand about knowing whether there

were drugs in the car, the trial court could find evidence to support a charge on the

law of parties. (RR, Vol. 4, pp. 83-85)




                                                                                    .1/
                       SUFFICIENCY OF TILE EVIDENCE

        As stated, Appellant admitted to the arresting officer that the drugs in the

 black box sticking out of Darwin Heidemeyer’s pocket were hers. She possessed

 drug paraphernalia in her purse, and within her reach in the car. She testified that

she was planning to get high with the people in the car. The evidence in this case

is therefore legally sufficient to support the allegations. Jackson v. Virginia, 443

U.s. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981).

                                   CONCLUSION

       Because counsel is 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). Accompanying this brief is counsel’s motion to withdraw

on these grounds.


                                      PRAYER


       WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays

that this Court permit her to withdraw after this Court’s own examination of the

record in this cause and to afford Appellant his right to file anypro se brief he may

wish to file.




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                                         Respectfully Submitted:




                                        Schoon Law Firm, P.C.
                                        200 N. Seguin Avenue
                                        New Braunfels, TX 78130
                                        State Bar No. 24046803
                                        PH: (830) 627-0044
                                        FAX: (830) 620-5657
                                        susan@schoonlawfirm.com

                                        Attorney for Appellant




                       CERTIFICATE OF COMPLIANCE

According to Microsoft Word’s word count tool, this document contains 4080
words.



                          CERTIFICATE OF SERVICE

I hereby certifS’ that a true and correct copy of Appellant’s Brief was delivered to
the District Attorney of Comal County, Texas on this the 12th day of November,
2015 by email to preslj~co.comal.tx.us




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