                                                                             ACCEPTED
                                                                         12-16-00070-CR
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                   9/20/2016 12:24:44 PM
                                                                               Pam Estes
                                                                                  CLERK

                  IN THE COURT OF APPEALS
                 TWELFTH DISTRICT OF TEXAS
                        TYLER, TEXAS                     FILED IN
                                                  12th COURT OF APPEALS
                                                       TYLER, TEXAS
KRISTOPHER JOSEPH LALONDE          §              9/20/2016 12:24:44 PM
                                   §                     PAM ESTES
                                                           Clerk
                                   § APPEAL No. 12-16-00070-CR
V.                                 §
                                   §
STATE OF TEXAS                     §

__________________________________________________________________

                   APPELLANT’S REPLY BRIEF


     APPEALED FROM THE 145th JUDICIAL DISTRICT COURT
         IN AND FOR NACOGDOCHES COUNTY, TEXAS,
           THE HONORABLE CAMPBELL COX, JUDGE



                                   GENA A. BUNN
                                   State Bar No. 00790323
                                   CLIFTON “SCRAPPY” HOLMES
                                   State Bar No. 09907000


                                   HOLMES & MOORE, P.L.L.C.
                                   P.O. Drawer 3267
                                   Longview, Texas 75606
                                   Phone No. (903)758-2200
                                   Facsimile No. (903)758-7864

                                   ATTORNEYS FOR APPELLANT
                                           TABLE OF CONTENTS

                                                                                                              PAGE NO.

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-7

I.       This Court should abate the instant appeal to allow Lalonde to file an out-
         of-time motion for new trial in the trial court in light of new evidence that
         Chief Deputy Stephen Godfrey – the State’s principle witness in the
         pretrial suppression hearing – has been indicted for aggravated perjury.
         .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.      The evidence was legally insufficient to support the jury’s verdict that
         Lalonde was guilty of possession of a controlled substance.. . . . . . . . . . 5

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                              -ii-
                                  INDEX OF AUTHORITIES
                                                                                            PAGE NO.

Tex. Code Crim. Proc. Ann. art. 40.001 (West 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                    -iii-
                                        ARGUMENT

I.     This Court should abate the instant appeal to allow Lalonde to file an out-
       of-time motion for new trial in the trial court in light of new evidence that
       Chief Deputy Stephen Godfrey – the State’s principle witness in the
       pretrial suppression hearing – has been indicted for aggravated perjury.

       Lalonde requests that this Court abate the instant appeal and remand to the

district court to permit Lalonde to file and litigate an out-of-time motion for new trial

regarding the first issue in this appeal: Whether the trial court abused its discretion

by failing to suppress the fruits of the warrantless search of Lalonde’s garage

apartment. This request is based on new evidence, unavailable to the trial court when

it ruled on Lalonde’s suppression motion, that Chief Deputy Stephen Godfrey – the

State’s principle witness in the pretrial suppression hearing (and at trial) – has been

indicted by a Nacogdoches County grand jury on four counts of aggravated perjury.1

       Lalonde has argued in his appeal before this Court that the trial court abused

its discretion by failing to suppress the fruits of the warrantless search of Lalonde’s

garage apartment. Contrary to the State’s argument, the record of the suppression

hearing does not support a conclusion that Lalonde consented to the search. Rather,

the evidence shows that Lalonde only consented to the officers’ entrance into the

apartment for the limited purpose of allowing them to identify the woman, Michelle


       1
         See State’s Second Motion for Extension of Time to File Answer to Appellant’s Brief, filed
in this Court on August 2, 2016, at Page 2.

                                                -1-
Reeves. The record shows that Godfrey initiated the “knock and talk” by telling

Lalonde they had received information that he was possessing, selling, and

manufacturing methamphetamine; Godfrey then sought Lalonde’s consent to search

his residence. Lalonde declined to grant consent to search, stating that Godfrey

needed to obtain consent from the owners of the property, his mother and stepfather,

who were not present. Lalonde even offered to contact them on the telephone, but

Godfrey declined. Then after Godfrey questioned Lalonde for more than twenty

minutes about Lalonde’s knowledge of local drug trafficking, Godfrey asked if there

was anyone else on the premises. And when Lalonde advised him that there were

other people present, Gofrey immediately halted the questioning and             sought

permission to identify the woman upstairs. At that point, Lalonde gave Godfrey

consent to enter the upstairs apartment for the limited purpose of identifying the

woman. But Godfrey exceeded the scope of Lalonde’s consent to enter the premises

when he did not stop after identifying Reeves, but instead continued to search the

entire residence.

      In its brief, the State makes much of the fact “that three separate officers

testified that [Lalonde] gave valid consent,” see State’s Brief at 4, apparently seeking

to minimize the significance of Godfrey’s testimony at the suppression hearing. But

the State fails to acknowledge that Godfrey was its principle witness at the hearing

                                          -2-
(and at trial), and that he was the only officer who testified unequivocally that he

received Lalonde’s consent to search. Three of the officers present that day testified

at the suppression hearing: Godfrey, deputy-in-training Mario Reyna, and Captain

Michael Davidson. The officers agreed that Lalonde had refused consent to search

the residence, at least initially, advising the officers that they would have to obtain

consent from his parents. 2 RR 9; 2 RR 16, 18; 2 RR 24. But according to Godfrey,

once he explained that Lalonde had authority to consent to the search since he was

residing there, Lalonde consented to the search. 2 RR 9. Reyna and Davidson agreed

with Godfrey that Lalonde had eventually consented to the search (2 RR 16-17; 2 RR

24-25), but then admitted that it was Godfrey who had main contact with Lalonde,

indicating they were not certain about the scope of consent given by Lalonde. 2 RR

16-17, 20; 2 RR 27.

      The following exchange occurred between defense counsel and deputy-in-

training Reyna:

      Defense counsel: What did he say that made you think he was giving consent
                       to search and not just secure the house and people?

      Reyna:              By allowing us officers to go upstairs and take a look.

      Defense counsel: Okay. Did he say that you could search or you could go
                       upstairs and make sure that person’s okay and safe?

      Reyna:              We thought we could search.

                                             -3-
2 RR 19. Therefore, contrary to the State’s urging, Godfrey’s testimony was critical

to the trial court’s suppression ruling, and new evidence showing that Godfrey has

now been charged with four counts of aggravated perjury warrants an abatement of

this appeal and out-of-time motion for new trial in the trial court.2

       In light of Lalonde’s testimony, the various inconsistencies in the officers’

testimony, and the lack of any audio or video recording of the encounter, the State has

failed to show clear and convincing evidence that Lalonde voluntarily consented to

the search of his apartment, and the trial court abused its discretion by concluding

otherwise. For all these reasons, the erroneous admission of this evidence constitutes

reversible error necessitating a new trial.




       2
        The Texas Code of Criminal Procedure provides, “[a] new trial shall be granted an accused
where material evidence favorable to the accused has been discovered since trial.” Tex. Code Crim.
Proc. Ann. art. 40.001 (West 2015).

                                               -4-
II.   The evidence was legally insufficient to support the jury’s verdict that
      Lalonde was guilty of possession of a controlled substance.

      Moreover, contrary to the State’s arguments, the evidence was legally

insufficient to support the jury’s verdict that Lalonde was guilty beyond a reasonable

doubt of the offense of possession of controlled substance. Specifically, the State

failed to establish sufficient affirmative links to connect Lalonde to the controlled

substance recovered by law enforcement.

      Lalonde was not in exclusive possession of the location where the

methamphetamine was found. In fact, Michelle Reeves had been alone in the bed

where the wallet was found for more than twenty minutes while Lalonde was being

questioned by law enforcement downstairs. And Lalonde testified at the suppression

hearing that he could not remember the last time he had used or seen his wallet

because he had not left the premises for more than a week.

      Regarding the “affirmative links” factors, the drugs were not found in plain

view, but were found in a wallet under the pillow where Michelle Reeves was

sleeping. Lalonde did not own the premises, but he had the right to possess the place

where the drugs were found; presumably, Reeves, as Lalonde’s guest, did as well.

Lalonde was not found with a large amount of cash. The drugs were not found in

close proximity to Lalonde, but rather were found in close proximity to Reeves after



                                         -5-
Lalonde had been downstairs for more than twenty minutes. There was no evidence

of any strong residual odor of the drugs. No other contraband was found when

Lalonde was arrested. Police found no paraphernalia to use the drugs found.

Lalonde’s physical condition did not indicate any recent consumption of

methamphetamine. Nor did his conduct indicate a consciousness of guilt. There is

no evidence that Lalonde made any attempt to escape or flee, or that he made any

furtive gestures. Admittedly, the drugs were found in a wallet containing Lalonde’s

identification, and thus it could be said that Lalonde had a special connection to the

contraband; but given that the wallet was found under a pillow where Reeve’s was

found sleeping and that Lalonde had not seen the wallet for days, that connection is

of limited import.     There were no conflicting statements, except from law

enforcement. And Lalonde made no incriminating statements. Only one-tenth of a

gram of methamphetamine was found, despite law enforcement’s receipt of

information that large quantities of illegal narcotics would be found. Finally, there

was nothing inherently suspicious about the area or the circumstances.

      The State has failed to establish sufficient affirmative links connecting Lalonde

to the one-tenth of a gram of methamphetamine recovered by law enforcement. And

a review of the evidence compels the conclusion that the evidence is legally

insufficient to prove beyond a reasonable doubt that Lalonde committed the offense

                                         -6-
of possession of a controlled substance. This Court should so find and reverse the

judgment of the trial court and render judgment of acquittal.

                                       PRAYER

      For all of the foregoing reasons, Appellant requests that this Honorable Court

reverse the judgment of the trial court and order a judgment of acquittal or,

alternatively, order a new trial; or, alternatively, abate this appeal and remand to the

trial court to permit the filing and litigation of an out-of-time motion for new trial in

light of new evidence that State’s witness Stephen Godfrey has been charged with

aggravated perjury.

                                                 Respectfully submitted

                                                 /s/Gena Bunn
                                                 GENA A. BUNN
                                                 State Bar No. 00790323

                                                 CLIFTON L. “SCRAPPY” HOLMES
                                                 State Bar No. 09907000


                                                 HOLMES & MOORE, P.L.L.C.
                                                 P.O. Drawer 3267
                                                 Longview, Texas 75606
                                                 Phone No. (903)758-2200
                                                 Facsimile No. (903)758-7864

                                                 ATTORNEYS FOR APPELLANT




                                           -7-
                         CERTIFICATE OF SERVICE

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

delivered by United States Mail to Carrie Gilcrease, Nacogdoches County District

Attorney’s Office, 101 West Main, Suite 250, Nacogdoches, Texas 75961, on this the

20th day of September, 2016. The document has also been served electronically

through the electronic file manager pursuant to Rule 9.5 of the Texas Rules of

Appellate Procedure.

                                               /s/Gena Bunn
                                               Gena Bunn



                       CERTIFICATE OF COMPLIANCE

      This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4

because it contains 1,453 words, excluding parts of the brief exempted by TEX. R.

APP. P. 9.4(i)(1).

                                               /s/Gena Bunn
                                               Gena Bunn




                                         -8-
