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                                  MEMORANDUM OPINION

                                          No. 04-07-00303-CR

                                       Melissa Ann FULCHER,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 216th Judicial District Court, Bandera County, Texas
                                     Trial Court No. BACR-05-004
                         Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting opinion by: Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: August 6, 2008

AFFIRMED

           Appellant, Melissa Ann Fulcher (“Fulcher”), was found guilty of possession of a controlled

substance weighing less than one gram. The trial court assessed punishment at one year’s

confinement, fully probated, a $500.00 fine, and court costs. Fulcher’s sole point of error is that the

trial court committed reversible error in failing to charge the required culpable mental state in the

jury charge.
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                                       STATEMENT OF FACTS

       At approximately 2:00 a.m. on September 16, 2004, Deputy Amy Price (“Deputy Price”) of

the Bandera County Sheriff’s Department was notified there was an intoxicated driver in a pickup

truck in the Bottle Springs Road area. Deputy Price headed towards that area and spotted a pickup

truck parked on the rocks close to a low water crossing. Deputy Price turned on her spotlight and

observed a woman, later identified as Fulcher, who was alone, crying, waving her arms, and

distraught. Deputy Price requested identification and subsequently determined that Fulcher had

outstanding warrants in Bexar County. As a result, Fulcher was placed under arrest.

       Deputy Price asked Fulcher whether someone could come and take possession of her vehicle

but was advised that no one was available to do so. Consequently, Deputy Price, along with Deputy

Jeff Horrell (“Deputy Horrell”), began an inventory search of the vehicle in order to impound it.

According to Deputy Price, Fulcher, who was seated in the patrol car during the search, became

violent as the search ensued and repeatedly asked for her “drink,” a Sunkist bottle located in a cup

holder in Fulcher’s vehicle. During the search, Deputy Horrell discovered an Exacto knife, a red

handled knife, and a mirror with a white-power residue on it inside the open glove box.

       A canine unit, manned by Deputy Gerald Johnson (“Deputy Johnson”), was then called to

assist in the search, and the drug dog alerted to the following items: the Sunkist bottle located in the

cup holder; the floorboard; Fulcher’s purse; a marijuana joint concealed in the console; a blue

canvas bag containing woman’s clothing and broken pieces of a lightbulb with burnt residue on

them; and an area under the vehicle where a broken light bulb with burn marks on it was found. The

only items submitted for further testing were the mirror, the broken lightbulb removed from the blue

bag, and the contents of the Sunkist bottle. Both the mirror and the light bulb fragments tested



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positive for trace amounts of methamphetamine; however, the contents of the Sunkist bottle tested

negative.1 Fulcher was indicted for possession of a controlled substance and pleaded not guilty.

       At trial, Deputy Price testified that, on the night in question, she observed Fulcher’s pupils

to be very large and that they did not respond well to the light, which she stated was indicative of

drug use. Additionally, during the strip search conducted at the jail, Price observed Fulcher to have

numerous sores and blisters all over her body, which she also stated was indicative of a

methamphetamine user.

       Deputy Horrell testified that the mirror, which contained white-powder residue, was found

“[i]n the glove box, and [the glove box] was actually open at the time.” Upon discovering the mirror

and observing the residue, Deputy Horrell removed it from the vehicle; therefore, it was not inside

the vehicle when the drug dog alerted on various items in and around Fulcher’s vehicle. Deputy

Horrell also went on to explain that open glove boxes are commonly used by methamphetamine

users to lay the mirror on so that they can chop the crystals. Further, Deputy Horrell testified that

the broken pieces of light bulb, which were found inside the blue bag where the drug dog alerted,

tested positive for methamphetamine.

       Deputy Johnson, the canine handler, testified that he inspected the Sunkist bottle the dog

alerted to and detected small specks on the cap, which he field-tested. Johnson sent the bottle to the

drug lab for testing. Deputy Johnson further stated that the light bulb fragments found outside the

vehicle that the dog alerted to had a black residue on them consistent with the black-burned residue

found in methamphetamine pipes. Deputy Johnson explained that a lightbulb is often adapted as a

pipe to smoke methamphetamine and that, on the night in question, Fulcher exhibited physical signs

of having smoked methamphetamine or crack cocaine.

       1
        The exterior of the Sunkist bottle was not tested.

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         Deputy Johnson’s suspicions led him to ask Fulcher to stick out her tongue, and when she

reluctantly complied, he noted that she had “a real thick white coating across her tongue with

blisters,” as well as burn marks on her lips. Further, Deputy Johnson observed that Fulcher had

sores on her face and arms and that her pupils were dilated. Based on his experience and training,

Deputy Johnson testified that this indicated recent drug use and more specifically, the use of

methamphetamine or cocaine, as both drugs are melted down and turn into a vapor. Deputy Johnson

also testified that along with the other items found, the Exacto knife and red handled knife found in

Fulcher’s glove box were considered drug paraphernalia.

         Joel Budge, an Austin crime lab employee, testified regarding the items sent for testing.

Budge indicated that while the contents of the Sunkist bottle tested negative for methamphetamine,

he did not test the exterior of the Sunkist bottle, where the drug dog alerted. Budge further testified

that the compact mirror and light bulb fragments, identified as State’s Exhibit 7, were tested and that

both contained a trace amount of methamphetamine. He concluded that Exhibit 7 was the light bulb

he tested because it had a strip of paper in the evidence bag marked with the lab’s case number and

his name.2

         Fulcher’s husband testified that the day before Fulcher’s arrest, they drove to Hondo to look

at some property Fulcher intended to purchase with money she recently inherited. Mr. Fulcher

stated that a friend referred them to a person, known only as “Nancy”, who had neighbors with

property they planned to sell. The Fulchers stayed at “Nancy’s” house that day and, according to

Mr. Fulcher, permitted “Nancy” to use Fulcher’s truck, which was about a month old, to move some


         2
            Fulcher argues in her brief that there was a mix-up regarding which light bulb tested positive for
methamphetamine because although the crime lab witness testified that the light bulb he tested was found in the blue
bag and marked as Exhibit 7, Deputy Johnson testified regarding a second light bulb also found in the blue bag and
identified as Exhibit 8. However, the record reflects that, unlike Exhibit 7, Exhibit 8 was an intact bulb that had not been
tested. Further, the crime lab witness testified that Exhibit 7 was comprised of broken glass.

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items. Mr. Fulcher admitted the Exacto knife was his, but denied that his wife owned the blue bag

found in her truck. Mr. Fulcher further denied that Fulcher had sores on her body or burned lips

when she was arrested.

        Fulcher also testified. When asked about the broken glass found under her parked vehicle,

she stated she had no knowledge of it. Further, in response to the State’s inquiry regarding the

mirror found in her glove compartment containing methamphetamine residue, Fulcher stated she did

not “recall” a mirror. Fulcher also testified that she had owned the truck for thirty days but had only

driven it three times during this period, including, apparently, the trip to Hondo the day before, and

the night in question. Fulcher did, however, admit to purchasing the Sunkist that night just prior to

arriving at the location.

        A jury found Fulcher guilty as indicted. The trial court assessed punishment at one year’s

confinement, fully probated, a fine, and court costs. Fulcher appeals, contending that the trial court

committed reversible error in failing to charge the required culpable mental state in the jury charge.

                            STANDARD OF REVIEW AND APPLICABLE LAW

        In reviewing charge error, we must first determine whether error exists. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If we find error, we must then determine whether the

error caused sufficient harm to require reversal. Id.; see also Hutch v. State, 922 S.W.2d 166, 171

(Tex. Crim. App. 1996). The degree of harm necessary for reversal depends upon whether the error

was preserved. Almanza, 686 S.W.2d at 171. Error properly preserved by an objection to the charge

will require reversal as long as the error is not harmless. Id. The court of criminal appeals has

interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. Id.

        However, for charge error that was not preserved at trial, the defendant must have suffered

actual egregious harm, that is, the error must be so harmful that it affects the very basis of the case,

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deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez v. State,

209 S.W.3d 117, 121 (Tex. Crim. App. 2006). The purpose of this review is to illuminate the actual,

not just theoretical, harm to the accused. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App.

2005); Almanza, 686 S.W.2d at 174. Absent a showing to the contrary, we may presume that the jury

acted rationally. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App.1993). “[E]gregious

harm is a difficult standard and must be proved on a case-by-case basis.” Ellison v. State, 86 S.W.3d

226, 227 (Tex. Crim. App. 2002); see also Hutch, 922 S.W.2d at 171.

       In considering whether jury charge error caused egregious harm, we consider the following:

1) the jury charge in is entirety; 2) the evidence, including the contested issues and the weight of

probative evidence; 3) counsels’ statements during voir dire and at trial; and 4) any other relevant

information in the record. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Almanza,

686 S.W.2d at 171. Where the application paragraph correctly instructs the jury but the abstract

paragraph is erroneous, any error contained in the abstract instruction is not egregious. Medina v.

State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). However, where, as in this case, the jury charge

contains all the required mens rea in the abstract and definition paragraphs, but fails to include an

explicit mens rea in the application paragraph, we must consider whether jury charge error caused

egregious harm as “the crucial part of the charge in determining the existence of fundamental error

is that part where the law is applied to the facts.” Hanks v. State, 625 S.W.2d 433, 435 (Tex.

App.–Houston [14th Dist.] 1981, no pet.).

                                            DISCUSSION

       Fulcher was indicted with “intentionally and knowingly possess[ing] a controlled substance,

to wit, Methamphetamine in the amount of less than one gram.” The application paragraph of the

court’s charge did not include an explicit mens rea, and Fulcher did not object to the jury charge.

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The State concedes that “it is likely that jury-charge error did occur in this case,” but argues that the

error did not cause egregious harm. Accordingly, the issue before this court is whether Fulcher

suffered actual egregious harm, that is, error so harmful that Fulcher was denied a fair and impartial

trial as a result of this charge error. Sanchez, 209 S.W.3d at 125.

        Fulcher maintains that she was egregiously harmed by the trial court’s failure to charge the

required culpable mental state because the State failed to prove that Fulcher knowingly and

intentionally possessed the items that tested positive for methamphetamine and instead, only showed

that Fulcher drove the vehicle. We disagree.

        In analyzing the Almanza factors, we first look at the jury instructions as a whole. See

Stuhler, 218 S.W.3d at 719; Almanza, 686 S.W.2d at 171. Here, the court’s charge began with the

abstract paragraph:

                                                   I.

               Our law provides that a person commits an offense if, she intentionally or
        knowingly possesses a controlled substance. Under our law, methamphetamine is
        a controlled substance.




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The abstract paragraph went on to define “intentionally” and “knowingly” as follows:

                                                  III.

                A person acts intentionally, or with intent, with respect to the nature of her
          conduct when it is her conscious objective or desire to engage in the conduct.

                 A person acts knowingly, or with knowledge, with respect to the nature of her
          conduct when she is aware of the nature of her conduct or to the circumstances
          surrounding her conduct when she is aware of the nature of her conduct or that the
          circumstances exist.

       Immediately following the definition of “intentionally” and “knowingly” is the application
paragraph:

                                                  IV.

                 Now if you find from the evidence beyond a reasonable doubt that on or
          about the 16th day of September, 2004, in Bandera County, Texas, the defendant,
          Melissa Ann Fulcher, did then and there possess a controlled substance, to-wit:
          methamphetamine in an amount of less than one (1) gram, then you will find the
          defendant guilty as charged.


Thus, in viewing the charge as a whole, the abstract portion of the charge, which contained both the

required culpable mental state and the accompanying definitions, sufficiently informed the jury of

the mental state required for commission of the charged offense. See Dinkins v. State, 894 S.W.2d

330, 339 (Tex. Crim. App. 1995); Lane v. State, 957 S.W.2d 584, 587 (Tex. App.–Dallas 1997, pet.

ref’d).

          Second, we look to the state of the evidence and the contested issues. The primary disputed

issue at trial was whether Fulcher intentionally or knowingly possessed the methamphetamine.

Fulcher claimed she had no knowledge of the items found in her vehicle that tested positive for

methamphetamine, had only driven her vehicle three times, and had recently loaned her vehicle to

an unknown person by the name of “Nancy.”



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       However, the record reflects that on the night in question, Fulcher, who was alone and had

parked her vehicle in an isolated spot, exhibited signs of recent drug use, including excitability,

dilated pupils, numerous sores and blisters, and lip burns. Further, although Fulcher denied owning

the blue bag found in the back of her truck, which contained a broken bulb with burnt residue, there

was evidence that a broken bulb was also found at the scene underneath Fulcher’s vehicle on the

driver’s side, which also contained burned residue consistent with the black burned residue coming

from methamphetamine pipes. Additionally, when asked about a mirror, which contained a trace

of methamphetamine and was found in the open glove compartment of her vehicle, Fulcher merely

stated that she could not recall any mirror. Further, Fulcher admitting to stopping at an ice house

earlier that evening and purchasing a Sunkist, which the drug dog later alerted to, along with the

blue bag containing the light bulb fragments.

       The only contrary proof presented, other than Fulcher’s testimony, was that of Fulcher’s

husband, who testified that the day before Fulcher’s arrest, a friend referred them to a person living

in Hondo and known only as “Nancy”, whom the Fulchers lent their new truck to later that day so

that “Nancy” could move some items. Mr. Fulcher denied that his wife owned the blue bag found

in her truck and, further denied that she had sores on her body or burned lips when she was arrested;

however, two officers at the scene testified that Fulcher had sores on her face and body, including

Deputy Johnson who testified that in addition to sores on her face and arms, Fulcher had “a real

thick white coating across her tongue with blisters on her tongue,” and burn marks on her lips, which

he stated, based on his training and experience, indicated that Fulcher smoked methamphetamine

or crack cocaine.

       Third, we look to the arguments of counsel. The record reflects that during voir dire, the

State told the jury panel at the very beginning of the case that it had to prove that Fulcher

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intentionally or knowingly possessed a controlled substance. During opening statements, the State

repeated a similar statement to the jury.

       Thus, in reviewing the jury charge in its entirety, the evidence, and counsel’s statements, we

find that the court’s error in omitting the requisite mental state from the application paragraph of the

charge did not result in egregious harm to Fulcher. See Stuhler, 218 S.W.3d at 719; Almanza,

686 S.W.2d at 171.

       Fulcher’s issue is denied.

                                            CONCLUSION

       Finding no egregious harm, we affirm the trial court’s judgment.



                                                         Karen Angelini, Justice

PUBLISH




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