                                                                               ACCEPTED
                                                                          06-14-00106-CR
                                                                SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     1/12/2015 4:24:12 PM
                                                                          DEBBIE AUTREY
                                                                                   CLERK

                 NO. 06 – 14 – 00106 – CR

                                                       FILED IN
                                                6th COURT OF APPEALS
      IN THE SIXTH DISTRICT COURT OF              TEXARKANA, TEXAS
                                              APPEALS
                 TEXARKANA, TEXAS               1/14/2015 2:04:00 PM
                                                    DEBBIE AUTREY
                                                        Clerk

                KADEEM BRACKINS RAY

                               Appellant,

                              v.

                  THE STATE OF TEXAS

                                   Appellee


 On appeal from the 124TH District Court, Gregg County, Texas
                Trial Court Case No. 42,177-B


            BRIEF OF THE STATE OF TEXAS


– ORAL ARGUMENT IS SOUGHT ONLY IF GRANTED TO
              APPELLANT–

                        CARL L. DORROUGH
                        Criminal District Attorney

                        Zan Colson Brown
                        Texas Bar No. 03205900
                        Assistant Criminal District Attorney
                        Gregg County, Texas
                        101 East Methvin St., Suite 333
                        Longview, Texas 75601
                        Telephone: (903) 236–8440
                        Facsimile: (903) 236–3701
                           TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………….………………………………2
STATEMENT OF FACTS ………………………………………………………4

SUMMARY OF THE ARGUMENT ……………………………………………8

ARGUMENT……………………………………………………………………...9

    1)   ISSUE ONE: Ample evidence of the extraneous offense was presented
         so that a reasonable fact finder could have found beyond a reasonable
         doubt that Ray had committed the extraneous offense. ………………9
    2) ISSUE TWO: Trial Court properly considered evidence of the
         extraneous offense, because it was proven beyond a reasonable doubt.
         …………………………………………………………………………………9
    a.   The appellant is challenging the sufficiency of the evidence of the
         extraneous offense of April 4, 2014; the standard of review is whether
         a reasonable fact finder could have found Ray guilty beyond a
         reasonable doubt………………………………………………………….. 9
    b.   A reasonable fact finder could have found possession with intent to
         deliver. ……………………………………………………………………..11
    a)   Standard of review on suppression issue is abuse of discretion….. 18
    c.   The lab report was admitted without objection because the Defendant
         had stipulated to the admission of documents and waived his right to
         confrontation. The remedy is a continuance, available to either side in
         a short-notice situation. …………………………………………………20
    2)   ISSUE THREE: The trial judge clearly considered the full range of
         punishment, including probation. ……………………………………..23
    3)   ISSUE FOUR: The trial judge appointed appellate counsel on June 4,
         2014, but no new trial motion was filed. ………………………………24

CONCLUSION AND PRAYER………………………………………………. 26

CERTIFICATE OF SERVICE ………………………………………………..27

CERTIFICATE OF COMPLIANCE …………………………………………27

                                        1
                               INDEX OF AUTHORITIES

       Federal Cases
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
    61 L. Ed. 2d 560 (1979) ......................................................................... 9, 10, 11,

       State Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................10
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................10
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ................................. 11, 13
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...................................10
Kyte v. State, 944 S.W.2d 29 (Tex. App.—Texarkana 1997, no pet.).....................13
Lassaint v. State, 79 S.W.3d 736 (Tex. App.—Corpus Christi 2002, no pet.) ........13
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ................................10
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011) ...................................19
Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) ....................................10
Muckleroy v. State, 206 S.W.3d 746 (Tex. App.—Texarkana 2006, pet. ref'd)......13
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ......................................11
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ................................11
Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009) ...................................10
State v. Moore, 225 S.W.3d 556 (Tex. Crim. App. 2007) .......................................25
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................19




                                                          2
        State Statutes


Tex. Health & Safety Code § 481.002 (2013) .........................................................11


        State Rules


Appellate Procedure, Rule 9 (2012).........................................................................27




                                                         3
                           STATEMENT OF FACTS

      On February 11, 2012, Kilgore police officer Terry Linder conducted a

traffic stop on a white 2003 Chevrolet Impala in Kilgore, Gregg County, Texas.

SX 2, at pages 14 of 18. Kadeem Brackens Ray was sitting in the front passenger

seat, under which a gun was found. SX2, Id. During the booking process,

authorities discovered an unknown object in his rectum, and he finally relinquished

it only after being transported to Good Shepherd Medical Center. Id. The object

was a clear zip lock bag containing 41 small zip-lock bags, each containing heroin.

Id. He also had a large amount of currency, $1170, which was seized. SX2 at 10 of

18. Two guns were found in the car, a black Glock 27 .40 caliber pistol, serial #

SCB340 and a Kimber Ultra CIP II .45 caliber pistol, serial # KU 98639. One

pistol was entered as stolen through Athens Police Department SX2, at 7 and 8 of

18.

      By the time of trial, on December 5, 2013, the State had decided to proceed

only on the possession of heroin with intent to deliver, abandoning the charges of

mere possession of heroin and of tampering with physical evidence. See amended

indictment. CR 24, 25. He was never indicted for the possession of the firearms.

Mr. Ray had decided to stipulate to the evidence and plead guilty, without a plea

bargain agreement as to punishment. CR 26, 27.




                                            4
      He applied for probation. CR 23. He was sent for a pre-sentence

investigation in which he denied using heroin. At sentencing, however, he claimed

to have a small heroin addiction problem. 3 RR 51. He also admitted selling

heroin. 3 RR 51-52.

      At the end of the guilty plea proceedings, he was warned by the judge as

follows:

            Also, if you commit any new offenses between now and the date
      of sentencing, that could affect what your sentence is. Do you
      understand?
            THE DEFENDANT: Yes, sir.
            THE COURT: This is, like I said, an open plea, so I don't know
      what my sentence is going to be; I don't know if it's going to be prison
      time or probation, I need to hear and listen to all the evidence. But if
      you -- if -- you not showing up or you committing new offenses
      between now and then would negatively affect your ability to get
      probation. Do you understand that?


2 RR 13. Ray answered that he did understand.

      On January 9, 2014, acting on an anonymous tip, Dallas Police Officer Chris

Cooley entered an open business named Ray’s Tobacco1, smelled marijuana and

detained Mr. Ray. 3 RR 34. The sales tax certificate was in the name of Kadeem



      1
           No warrant was necessary, because the business was registered with the

City of Dallas, and as such was open to inspection by law enforcement at any time.

3 RR 34.

                                            5
Ray. 3 RR 35. During the protective sweep of the back room, Cooley and other

officers found a bag of marijuana on top of a futon and a gun beneath the raised

futon. 3 RR 36. The area under the futon was large enough for someone to hide

there, and the gun was visible when the officer bent down. Id.        The marijuana

weigned 147 grams, slightly over four ounces. 3 RR 37. Ray is facing charges in

Dallas for the marijuana, but not the firearm. 3 RR 38.

      On May 5, 2014, when he came back for the sentencing phase, the State

was alleging that, after the guilty plea and that warning, Mr. Ray had twice more

been caught with drugs. In Dallas, on April 4, 2014, he was caught by Dallas

Police Officer Chris Cooley with more than 13 grams of heroin. That arrest was

recorded on video from a car camera and a body camera. SX 4. The lab report was

not prepared by the lab until April 24, and not filed by the State until April 30. The

sentencing hearing was May 5, only five days before trial. The lab report was

unavailable 20 days before sentencing, because the arrest was only 31 days prior to

sentencing, and lab reports take time.

      The video shows that Ray stepped out of the car slowly, did not comply with

putting his hands on the car, put his left hand into his left pocket, transferred

something from his left hand to his right hand while Cooley was trying to handcuff

him, then during the take-down somehow (not discernible on the video) expelled

the item from his hand to where it landed in the street ten feet away. SX 4.

                                             6
      Ray’s right to appeal was discussed on the record on May 5, and Ray

acknowledged that he understood his appellate rights. CR 30. The judge signed on

May 7. CR 30. On May 12, 2014, Ray filed a notice of appeal and wrote a letter

claiming indigence, even after the judge had found on the record that he was not

indigent. 3 RR 77. The judge apparently changed his mind, and decided to appoint

an appellate lawyer. He signed the order appointing counsel on June 4, 2014.




                                           7
                       SUMMARY OF THE ARGUMENT

      1) and 2) The extraneous offense which occurred in Dallas on April 4 was

proved beyond a reasonable doubt before they were considered by the Court to

assess punishment. Ray testified he did not possess it and he did not throw it. That

someone else put it there is possible, but not plausible. The defense raised some

doubt, but not reasonable doubt. The lab report for the heroin found on April 4

was quickly prepared and signed only twenty days after the offense, which was

only eleven days before sentencing. Defense counsel affirmatively said, “No

objection.” Additionally, he and Ray on December 5, 2013, had stipulated that

such reports could come in.

      3)   The record shows that the judge did consider the full range of

punishment, including probation.

      4) The judge did not deny Ray his right to counsel, he just made a finding

that Ray was not indigent and could retain an appellate attorney. Eventually, the

judge changed his mind and appointed counsel, but there is no record of a hearing

on the issue, and the appellate record contains no order appointing him because

that will be turned in when Mr. Dunn requests payment.

      5) The judge’s order of consecutive sentences is error. This Court can and

shoulmodify the judgment to delete that part of the order.



                                            8
                                   ARGUMENT

   1) ISSUE ONE: Ample evidence of the extraneous offense was presented
      so that a reasonable fact finder could have found beyond a reasonable
      doubt that Ray had committed the extraneous offense.
   2) ISSUE TWO: Trial Court properly considered evidence of the
      extraneous offense, because it was proven beyond a reasonable doubt.

      Appellant alleges in his first and second issues that the trial judge erred by

considering evidence of an extraneous offense that had not been proved beyond a

reasonable doubt. He argues that the Dallas Police video does not show him

throwing the heroin into the street. He further argues that a lab report was not filed

20 days in advance of the trial and should not have been admitted.


         a. The appellant is challenging the sufficiency of the evidence of the
            extraneous offense of April 4, 2014; the standard of review is
            whether a reasonable fact finder could have found Ray guilty
            beyond a reasonable doubt.


      A claim of insufficient evidence is measured by the standard set forth in

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

U.S. LEXIS 10 (1979). The standard of review for sufficiency of evidence is as

follows: Viewing the evidence in the light most favorable to the verdict, could any

reasonable jury find beyond a reasonable doubt that the State proved all the

essential elements of the offense charged? Id.

      This appellate court will review all the evidence in the light most favorable

to the fact-finder's verdict to determine whether any rational jury could have found
                                             9
the essential elements of knowing or intentional possession of a controlled

substance with intent to deliver. A sufficiency review will focus on the quality of

the evidence presented. Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App.

2010) (Cochran, J., concurring). As the Brooks opinion directs, deference is given

to the fact finder’s duty "to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts."

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443

U.S. 307, 1979 U.S. LEXIS 10 (1979)).

      Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997).

      “[W]hen there are two permissible views of the evidence (one tending to

connect the defendant to the offense and the other not tending to connect the

defendant to the offense), appellate courts should defer to that view of the evidence

chosen by the fact-finder.” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim.

App. 2009). "The jury may accept or reject any or all of the testimony of any

witness if a reasonable juror could do so" or, more generally, "Evidence can be

disregarded whenever reasonable jurors could do so." Matlock v. State, 392 S.W.3d

662, 673 (Tex. Crim. App. 2013) (citing City of Keller v. Wilson, 168 S.W.3d 802,

811 (Tex. 2005)).

                                            10
      Circumstantial evidence is as probative as direct evidence, and

circumstantial evidence alone can be sufficient to establish guilt. Patrick v. State,

906 S.W.2d 481, 488 (Tex. Crim. App. 1995). The jury alone determines the

credibility of witnesses as well as the weight to be attached to their testimony.

Jackson, 443 U.S. at 319. “To prove unlawful possession of a controlled substance,

the State must prove that: (1) the accused exercised control, management, or care

over the substance; and (2) the accused knew the matter possessed was

contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

“’Possession’ means actual care, custody, control, or management.” Tex. Health &

Safety Code § 481.002 (2013).



         b. A reasonable fact finder could have found possession with intent
            to deliver.


      Appellant asserts that Ray did not possess the heroin found in the street.

Viewing the evidence in the light most favorable to the verdict, could any

reasonable fact finder find beyond a reasonable doubt that the State proved all the

essential elements of the offense with which will likely be charged in Dallas

County? The State established that Ray was present at the location where drugs

were found, but mere presence alone does not establish actual care, custody or

control. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).

                                            11
      The State proved that before the defendant was stopped, the heroin was not

in the road where it was found. SX 5. Even if the fact finder were to consider the

implausible theory that someone else could have placed the heroin in the street, a

reasonable fact finder would also consider the fact that there are other independent

facts and circumstances which link Ray to the drugs.

      Recognized factors linking an accused to contraband include these:

      (1) the contraband was in plain view or recovered from an enclosed place;

(2) the accused was the owner of the premises or the place where the contraband

was found; (3) the accused was found with a large amount of cash; (4) the

contraband was conveniently accessible to the accused; (5) the contraband was

found in close proximity to the accused; (6) a strong residual odor of the

contraband was present; (7) the accused possessed other contraband when arrested;

(8) paraphernalia to use the contraband was in view, or found on the accused; (9)

the physical condition of the accused indicated recent consumption of the

contraband in question; (10) conduct by the accused indicated a consciousness of

guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures;

(13) the accused had a special connection to the contraband; (14) the occupants of

the premises gave conflicting statements about relevant matters; (15) the accused

made incriminating statements connecting himself or herself to the contraband;

(16) the quantity of the contraband; and (17) the accused was observed in a

                                            12
suspicious area under suspicious circumstances. Muckleroy v. State, 206 S.W.3d

746, 749 (Tex. App.—Texarkana 2006, pet. ref'd)(citing Lassaint v. State, 79

S.W.3d 736, 740-41 (Tex. App.—Corpus Christi 2002, no pet.); Kyte v. State, 944

S.W.2d 29, 31-32 (Tex. App.—Texarkana 1997, no pet.)).

      The "logical force of all of the evidence, direct and circumstantial," rather

than the number of links, is dispositive. Evans, 202 S.W.3d at 162.

      The following facts, (referenced to the numbers in the above list) link Ray to

the heroin found in the street:

      3. The accused was found with a large amount of cash. “He had a little over

$2,000. It was $2,571.” 3 RR 32.

      4. The contraband was conveniently accessible to the accused. On the video

he can be seen putting his hand in his pocket, retreieving something, concealing it

inside his fist, transferring it from one of his hands to the other. Officer Cooley was

trying to cuff him, but in the process, he was able to break free from both Cooley’s

hands. 3 RR 25. Then he spun and took a couple of large steps toward the street.

Officer Cooley took him down and commented repeatedly that the accused had

something in his hand or that it was underneath him. SX 4.

      5. The contraband was found in close proximity to the accused. Although

Cooley thought it would be in his hand or underneath him, when they searched the

area within his reach, they found nothing. SX 4. They then expanded their search

                                             13
and located it in the street, approximately 10 feet in front of where he went down.

3 RR 31.

      6. A strong residual odor of the contraband was present. (Not heroin, but

Cooley testified to an overwhelming odor of marijuana, and the smoke was even

visibile on the chest-camera video.) “As we approach, the driver, who ends up

being Mr. Ray, rolls down the window, and you can see marijuana smoke

billowing throughout the vehicle.” 3 RR 11. SX 4 (chest camera). The passenger

said they had just smoked some marijuana, but it was gone. SX 4 (car camera).

      8. Paraphernalia to package the contraband was in view, or found on the

accused. Cooley testified, “And then later, we found some baggies in the [16]

vehicle that were the same type of baggies that were found in -- that contained the

heroin in the street.” 3 RR 15-16.

              The heroin -- the heroin is wrapped in a clear plastic baggie, and
      it was -- the lab's kind of mushed it down -- it was in a ball. But it's in
      this little bag inside here, and it was tied in a knot. When we searched
      the vehicle, we found more of these plastic baggies that are tied in the
      same knot, same color, same size, same type of material. 3 RR 18.


10, 11, and 12. Conduct by the accused indicated a consciousness of guilt. The

accused attempted to flee and made furtive gestures.

       Ray was told four times to put his hand on the vehicle, and he never

complied. SX4. He refused Cooley’s other instruction to take his hand out of his

pocket until he found what he was groping for. SX 4. He put whatever he took out
                                             14
of his pocket into his other hand, which was not, at the time, in Cooley’s grasp. SX

4. They spun, and took a couple of big steps toward the street before or while

Cooley was taking him down. SX 4. He refused to submit to Officer Cooley and

handcuffs until he got rid of the heroin. SX4. A reasonable fact finder could infer

from his surreptitious movements and from his struggle to avoid handcuffs, and

from the fact that his hands were not always visible on the video, that he somehow

flicked the 37 grams of heroin into the street.

      16. The quantity of the contraband. When Officer Cooley was asked about

the quantity, he said this:

          Q. “How much is -- I mean, heroin -- what do we have, 13 grams of heroin;

is that a large amount or a little amount in Dallas?

      A. That's -- that's a large -- that's a large amount. I mean, for personal use,

you're talking less than one-tenth of one gram is usually. . .” 3 RR 31; SX 6, lab

report.

      17. The accused was observed in a suspicious area under suspicious

circumstances. This testimony, by linking two offenses on two dates, explains why

the officers were suspicious of the area and circumstances:

            Q. All right. I'd like to take you back to – what did I say, April 4,
      2014? What were you doing?
            A. My partner and I that night, we were conducting surveillance
      on a smoke shop known as Ray's Tobacco.
            Q. All right. And what happened?

                                             15
              A. When we got set up in our location, we observed the smoke
        shop from a distance. We saw a black Ford Explorer idling out front of
        the business, it was running. About ten minutes later, the vehicle begins
        to move; it's leaving the location. 3 RR 8.


              The following excerpts explain why Ray’s Tobacco was a suspicious

area:

               Q. All right. I'm going to switch gears now, and I want to talk to
        you about a different date. . . January 9th of 2013.
               A. Yes.
               Q. Do you remember that particular date?
               A. Yes, I do.
               ...
               Q. All right. What happened in this particular case? Why -- why
        did -- did you have contact with the defendant and why did you have
        contact with the defendant?
               [33] A. Yes. We received a 911 call, the same smoke shop, Ray's
        Tobacco, someone called from nearby the location. They said that there
        were persons inside selling narcotics and the place smelled of drugs. 3
        RR 32-33.
               ....
               Q. Okay. And did you walk inside?
               A. Yes, we did.
               Q. And what did you notice when you walked inside?
               A. Immediately, the odor -- just overwhelmed by the odor of
        marijuana. 3 RR 34.


              A. The -- the defendant's name is Ray, the store is called "Ray's
        Tobacco." And then there's also a certificate of occupancy, there's I
        believe a sales tax permit; that's all in Mr. Ray's name. 3 RR 35.
                      ....
              Q. All right. So you found a gun and you found the marijuana.
        How much marijuana was found?
        A. 147 grams. 3 RR 36.


                                              16
      Based on the totality of the circumstances, the trial court found that there

were enough links between Ray and the heroin to prove that he possessed it with

an intent to distribute, and the court’s decision was within the zone of reasonable

disagreement.

      The trial court found, beyond a reasonable doubt, that the heroin in the street

belonged to Kadeem Ray. The following excerpt from the record, the judge

explains his findings to support a finding that the State proved, beyond a

reasonable doubt, the intent to distribute:

              The heroin found in Dallas County is troubling, too. The State,
      under 37.07, has offered this
      [75]
      evidence for punishment purposes. I have to make a determination
      whether it's been proved beyond a reasonable doubt. I have your
      testimony that you didn't have it, this wasn't yours. The State's evidence
      is that admittedly so, they were targeting you. They pull over a vehicle
      that has -- that you can see from one of the vehicles, marijuana -- or
      smoke coming out. Based on the officer's testimony unimpeached, he
      said it was marijuana smoke.
              They ask you to get out of the vehicle; you comply with that
      eventually. They ask you to get your hands out of your pockets; you
      refuse to comply with that. Over and over they ask you. So we have
      furtive gestures. It gets so bad that you won't cooperate, that they have
      to try and take -- grab your arms, and they take you down. The officer
      says the entire time you have something in your hand.
              In the street, near you, they find approximately 13 grams of black
      tar heroin, still in a ball, still warm, on a busy, busy Dallas street. They
      find identical packaging in your vehicle.
              When you put that together with you being found in Gregg
      County, Texas, with 41 baggies of heroin in your rear, I believe,
      considering the testimony of the
      [76]

                                              17
      officers versus your testimony, looking at credibility of the witnesses,
      the circumstantial evidence, that the State has proven that you possessed
      this beyond a reasonable doubt.
              Part of my reasoning in figuring that is because of your
      testimony. While you are very smart, Mr. Ray, I think you think you're
      smarter than you actually are. Because you're also a liar, because you
      have lied to me on this witness stand. You -- you testified today that
      you, on and off, had a heroin problem. I found that very interesting
      because, as I was preparing for this hearing, I reviewed your PSI several
      times and what you told Ms. Hollie Booth.
              You told Ms. Hollie Booth that, when asked what controlled
      substances or drugs you've done -- let's see, you admitted that you had
      done alcohol; you admitted you had done marijuana, which we all know
      you did. But as to cocaine, denied use; crack, denied use; oh, heroin,
      denied use. Later on, in what drugs you've used in the last 12 months,
      never used heroin.
              Which, in my mind, kind of confirmed what you are; a drug
      dealer. You're smart enough not to use your product, you just sell it.
      You come into the streets of Gregg County with 41 bags. That's not -- if
      you were buying it for individual use, you would have probably bought
      it in
      [77]
      a little larger quantity instead of buying it in 41 separate bags. This,
      with all these little baggies, is probably meant for the folks in Dallas
      County.
      3 RR 74-77.

      From the above evidence, the judge could reasonably have determined that

The State met its burden under 37.07. The State respectfully requests that this

Court defer to the trial court’s determination of who was and was not credible,and

defer to his findings of fact, which are supported by the record.

   a) Standard of review on suppression issue is abuse of discretion.

      Defense counsel did not file a written pre-trial motion to suppress the arrest

on April 4, but he did object and request that the trial court not make a finding on
                                             18
it, claiming that the State had not met its burden under 37.07 and 404 (b). 3 RR 69-

70. Defense counsel even said it was in the trial judge’s discretion. 3 RR 70. In

reviewing a trial court's overarching ruling on a motion to suppress, "an appellate

court must apply a standard of abuse of discretion and overturn the trial court's

ruling only if it is outside the zone of reasonable disagreement." Martinez v. State,

348 S.W.3d 919, 922 (Tex. Crim. App. 2011). However, "The appellate court

must apply a bifurcated standard of review, giving almost total deference to a trial

court's determination of historic facts and mixed questions of law and fact that rely

upon the credibility of a witness, but applying a de novo standard of review to pure

questions of law and mixed questions that do not depend on credibility

determinations." Id. at 922-923.

      If there had been a motion to suppress hearing, the trial court would have

been the sole judge of witness credibility and weight of witness testimony. Wyatt

v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The appellate court should not

disturb trial court findings that are supported by the record. Id. This trial court put

findings on the record of why he felt the heroin possession had been proved

beyond a reasonable doubt.

      Facts and circumstances surrounding the finding of the heroin support the

trial court’s finding that the April 4 possession offense was proved beyond a

reasonable doubt. The only “evidence” that Ray did not possess it or dispose of it

                                             19
was his word, and the video that does not conclusively show that he threw it or not.

It does not take a major league wind-up to toss 37 grams of a substance a distance

of ten feet. It could have been done surreptitiously during the take down, even if

not visible on video, because on the video, there are moments when Ray’s arms

cannot be seen.

      Additionally, there is no motive for someone else to place the heroin there. If

a police officer were to have placed it there, certainly he would have placed it

closer to the point of take down, not ten feet away. If a random passerby were to

have dropped it there, he would be giving up with a great deal of value. Why

would someone with 37 grams of heroin just toss it out in the street near a large

group of police officers? The State prays that trial judge’s finding of possession be

given the deference it is due.



          c. The lab report was admitted without objection because the
             Defendant had stipulated to the admission of documents and
             waived his right to confrontation. The remedy is a continuance,
             available to either side in a short-notice situation.

      The appellant was admonished in writing about the concessions he was

making when he pleaded guilty. CR 28-29. In the written plea admonishments he

signed on December 5th, 2013, he agreed to “waive and give up the right to

appearance, confrontation and cross-examination of the witnesses and I consent to

oral and written stipulations of evidence.” CR 29.
                                            20
      The appellant was further admonished orally on that same day:

             THE COURT: Before I can accept your guilty
             plea, there are several rights I have to go over with you.
             Those rights are contained on these Written Plea
      [6]    admonishments. 2 RR 5-6.

      ....

             THE COURT: Also, by pleading "guilty," you
             waive the rights you have to confront or question the
             witnesses who could testify against you. The State's not
             going to have to call any witnesses today to prove their
             case. Instead they can introduce your Stipulation of
             Evidence, any offense reports or lab reports or witness
             statements that they feel are needed, and that, along with
             your plea of "guilty," will be enough for me to find you
             guilty. Do you understand that?
             THE DEFENDANT: Yes, sir. 2 RR 7.

      As to the timing of the filing of the lab report, one must look at the timing of

the offense. His sentencing date was May 5, 2014. The offense in Dallas where the

heroin was found in the street was April 4, 2014. The lab report was signed on

April 24, 2014, and filed into this case on April 30. It would have been impossible

for the State to comply with the statutory time tables quoted by the Appellant and

file it 20 days before the sentencing hearing.

      The waiver of any objections to the lab report was done on December 5,

both orally and in writing. The State was unable to file it 20 days before the

sentencing hearing. The record does not show that anybody requested a




                                              21
continuance, and does not show when the State received the lab report or notified

the defense about it.

      The case law cited by Appellant, Deener v. State, is inapposite. Appellant

says it holds that failure to object to a certificate properly filed under Article 38.41

of the Criminal Procedure Code waives the right to object. He distinguishes Deener

by pointing out that in Deener, the certificate was timely filed and the State’s lab

report in the present case was not. See Appellant’s brief at 19-20.

      As he points out, Ray could not have timely objected because he did not

have time to give ten days’ notice of his objection. The State has a similar

argument: The State could not have given twenty days’ notice of the lab report,

because twenty days before the sentencing hearing, the lab report did not exist. It

was not prepared and signed until April 24. The lab report was finished only 20

days after the offense occurred. The offense occurred on April 4. The only way the

State could have given twenty days’ notice of a lab report on the 13 th of April

would be for the lab report to have been completed between April 4 and April 15.

Typically, lab reports take significantly longer than 11 days. The date the offense

occurred was too close to the date of the sentencing hearing to make compliance

with this statute possible.

      As to his proposed remedy, a motion for continuance, the State did not file

one, but neither did the defendant. If he wanted to object, he would be the one

                                              22
who wanted a continuance, and the record does not show that he filed one. The

State, already facing a gap of six months between plea and sentencing, was not

likely to want a continuance.

      Error, if any, was harmless. The fact that the substance was heroin was

never disputed.    On the video, Officer Cooley, a man with experience as a

narcotics officer, recognized it immediately as heroin, and the car video shows

another officer conducting a field test. If one listens carefully to the audio from the

body camera recording, one can hear another officer say, “It’s heroin.” So even

without a lab report, there was some evidence that the substance was heroin.




   2) ISSUE THREE: The trial judge clearly considered the full range of
      punishment, including probation.


      The Appellant asserts in Issue Three that the trial court erred by failing to

consider the full range of punishment, by categorically failing to consider

probation as a possible sentence. See Appellant’s Brief at 22.

      The trial judge clearly did consider probation.


      “Also I can probate that sentence and put you on probation from anywhere

from two years up to ten years.” 2 RR 8.




                                             23
      THE COURT: “Now, you have filed an application for probation, and I am

bound to consider that [9] application, but I do not have to grant probation. Do

youunderstand that?” THE DEFENDANT: “Yes, sir.” 2 RR 8-9.

      THE COURT: “I don't know if it's going to be prison time or probation, I

need to hear and listen to all the evidence.” 2 RR 13.

      “I now have to decide what is your proper punishment. Do I take a chance

and put you on probation, or do I sentence you to the penitentiary? You are a

young man, very well spoken, I think you're very intelligent. I admit I have some

concerns, however.” 3 RR 74.

      “You're a drug dealer. Drug dealers do not get probation in this Court. Drug

dealers do not get probation in Gregg County.” 3 RR 77.

      From the above excerpts from the record, the trial court clearly considered

probation. He would not have made any of the above statements, even the the last

two statements, unless he was considering it. Just because he did not order

probation does not mean he did not consider it. Issue three should be rejected.


   3) ISSUE FOUR: The trial judge appointed appellate counsel on June 4,
      2014, but no new trial motion was filed.


      The appointment of appellate counsel was delayed, partially because Mr.

Ray did not file his notice of appeal and request for appointed counsel at the


                                            24
sentencing hearing. The judge had stated on the record while sentencing him that

he would not make a finding of indigence:

             Mr. Larison will consult with you on your appellate rights. I also
             make a finding that the defendant is not in any way indigent.
             Because every time he's been arrested, he's had cash; he testified
             about owning a Mercedes and being able to make bonds in over
             $200,000. So he is not indigent.


      After that finding, Mr. Ray, while still being represented by Mr. Larison,

requested in writing that the judge reconsider and appoint him counsel, claiming to

be indigent, after all.   The judge did reconsider, but did not sign the order

appointing counsel, signifying that he had changed his mind, until June 4. The

record does not reveal why the order was not signed until then. The record does not

reveal what time it was signed. Likewise, the record does not reveal what time it

was delivered, or why Mr. Dunn did not become aware of it until the next day. If

Mr. Dunn had become aware of the order on the day it was delivered, he could

have filed a motion for new trial that day. Amendments to motions for new trial

are allowed after the 30-day deadline, if the State does not object. State v. Moore,

225 S.W.3d 556 (Tex. Crim. App. 2007)(Te.x Crim. App. 2007.

      Finally, the Appellant’s brief does not show how Ray was harmed. He does

not point out in his brief any error that could have been corrected only by a motion

for new trial.


                                            25
      Appellant’s fourth issue should be rejected, and the conviction and sentence

affirmed.




                         CONCLUSION AND PRAYER

      Appellant has not proved that, regarding the extraneous offense, the State

failed to prove it beyond a reasonable doubt. Appellant has not proved that the

judge failed to consider probation, nor that he was denied due process or assistance

of counsel.

      For the foregoing reasons, the State prays that the conviction and sentence

be affirmed.

                                      Respectfully Submitted,

                                      /s/Zan Colson Brown
                                      Zan Colson Brown
                                      Texas Bar No. 03205900
                                      Assistant District Attorney
                                      101 East Methvin St., Suite 333
                                      Longview, TX 75601
                                      Telephone: (903) 236–8440
                                      Facsimile: (903) 236–3701




                                           26
                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been

forwarded to all counsel of record by electronic deliver or hand delivery to:


      Mr. Lew Dunn
      P.O. Box 2222
      Longview, Texas 75606
      this 12th day of January, 2015.

                                              /s/ Zan Colson Brown
                                              Zan Colson Brown
                                              Assistant District Attorney


                       CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document complies with Texas Rules of

Appellate Procedure, Rule 9 (2012) regarding length of documents, in that

exclusive of caption, identity of parties and counsel, statement regarding oral

argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and appendix, it

consists of 5,578 words.

                                              /s/Zan Colson Brown
                                              Zan Colson Brown
                                              Assistant Criminal District Attorney



                                             27
