                                                                                                ACCEPTED
                                                                                           06-14-00131-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                      TEXARKANA, TEXAS
                                                                                     3/24/2015 10:26:34 PM
                           No. 06-14-00131-CR                                              DEBBIE AUTREY
                       Trial Court No. 12F0117-202                                                  CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                   3/25/2015 10:35:00 AM
Cornell McHenry,                                                        DEBBIE  AUTREY
                                                                             Appellant
                                                                            Clerk


v.

The State of Texas,                                                              State
                 Appealed from the 202nd Judicial District Court
                             Bowie County, Texas




                       BRIEF FOR THE STATE
                   The State Does Not Request Oral Argument

                                            Respectfully submitted:

                                            Jerry D. Rochelle
                                            Criminal District Attorney
                                            Bowie County, Texas
                                            601 Main Street
                                            Texarkana, Texas 75501
                                    By:     Lauren N. Sutton
                                            Assistant District Attorney
                                            601 Main Street
                                            Texarkana, Texas 75501
                                            Texas Bar No. 24079421
                                            Lauren.sutton@txkusa.org
                                            Attorneys for the State
                              In The Court of Appeals
                       For the Sixth Supreme Judicial District
                                At Texarkana, Texas


Cornell McHenry,                            §
           Appellant                        §
                                            §              No. 06-14-00131-CR
v.                                          §
                                            §
The State of Texas,                         §               BRIEF FOR THE STATE
             State                          §
                                            §


                                Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

     1. Defendant and Appellant:

        Cornell McHenry

     2. Attorneys for Appellant at trial:

        Rick Shumaker
        Chad Crowl
        Public Defender’s Office
        424 W. Broad Street
        Texarkana, Texas 75501

     3. Attorney for appellant on appeal:

        Bart Craytor
        Lesher & McCoy
        126 W. Second St.

                                                1
   Mount Pleasant, Texas 75455


4. Attorney for the State of Texas at trial:

   Mike Shepherd
   Lauren N. Sutton
   Assistant District Attorneys
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on Appeal:

   Lauren N. Sutton
   Assistant District Attorney
   601 Main Street
   Texarkana, Texas 75501
   Lauren.sutton@txkusa.org


6. Presiding Judge at trial:

   Honorable Leon F. Pesek Jr.
   District Court Judge
   202nd Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                       2
                                               Table of Contents

Identity of the Parties and Counsel ........................................................................ 1-2

Table of Contents ................................................................................................... 3-4

Index of Authorities ............................................................................................... 5-7

Statement of the Case................................................................................................. 8

Reply to Points of Error ............................................................................................. 9

Summary of the Argument................................................................................. 10-12

Argument............................................................................................................ 12-41

                   Reply to Point of Error Number One ............................................ 12-15
                   Sufficient evidence was presented to corroborate the co-
                   defendant’s testimony to sustain the Appelllant’s conviction.

                   Reply to Points of Error Number Two and Three ......................... 16-22
                   Evidence was sufficient to prove the elements of the offense
                   beyond a reasonable doubt.

                   Reply to Point of Error Number Four ........................................... 22-29
                   The jury was given a proper accomplice witness instruction, but
                   any error in submitting the issue of accomplice status to the jury
                   did not egregiously harm the Appellant.

                   Reply to Point of Error Number Five ............................................ 29-34
                   The trial court did not abuse its discretion in excusing a juror
                   due to her fear of retaliation.



Prayer for Relief ....................................................................................................... 35

Certificate of Compliance ........................................................................................ 36
                                                             3
Certificate of Service ............................................................................................... 37




                                                           4
                                     Index of Authorities

Cases

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1984)...................................... 17

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).....................16,17,18,23

Bailey v. State, 867 S.W.2d 42 (Tex. Crim. App. 1993) ......................................... 18

Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011).................................. 11

Boones v. State, 170 S.W.3d 653 (Tex. App.—Texarkana 2005, no pet.) .............. 17

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................ 9

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ............................. 10

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)......................................... 9

DeBlanc v. State, 799 S.W.2d 701 (Tex.Crim.App.1990)....................................... 20

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................16,23

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) ...................................... 19

Evans v. State, 202 S.W.2d 158 (Tex. Crim. App. 2006) ........................................ 11

Francis v. Franklin, 471 U.S. 307 (1985) ............................................................... 21

Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) ...................................... 6,7

Hall v. State, 161 S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref’d) ......... 7

Herron v. State, 86 S.W.3d 621 (Tex.Crim.App. 2002) .......................................... 21

Hutch v. State, 922 S.W.2d 116 (Tex. Crim. App. 1996) ........................................ 18

                                                    5
Jackson v. Virginia, 443 U.S. 307, 319 (1979)........................................................ 10

Jones v. State, 195 S.W.3d 279 (Tex.App.–Fort Worth 2006, no pet.) ................... 21

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ...........................10,11

McGoldrick v. State, 682 S.W.2d 573 (Tex. Crim. App. 1985) .............................. 12

Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993)................................. 7

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................16,23

Parker v. Randolph, 442 U.S. 62 (1979) ................................................................. 21

Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996) ...................................... 26

Rankin v. State, 995 S.W.2d 210 (Tex. App.—Houston [14th Dist.] 1999) ........... 26

Rudd v. State, 921 S.W.2d 370 (Tex. App. – Texarkana 1996, pet. ref’d) .............. 17

Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991).............................17, 21

State v Medina, 7 S.W.3d 633 (Tex, Crim. App. 1999) .......................................... 18

Swan v. State, 76 S.W. 464 (Tex. Crim. App. 1903) ............................................... 19

Taylor v. State, 106 S.W.3d 827 (Tex. App.—Dallas 2003, no pet.) ...................... 13

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ........................... 10

Wright v. State, 401 S.W.3d 813 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)12

Zollicoffer v. State, 16 Tex. Ct. App. 312 (1884) .................................................... 19



Texas Code of Criminal Procedure

Texas Code of Criminal Procedure art. 38.14 ...................................................... 6,20


                                                    6
Texas Penal Code

Texas Penal Code § 1.07(a)(39)............................................................................... 11



Texas Health & Safety Code

Texas Health & Safety Code § 481.115 .................................................................. 11




                                                       7
                              Statement of the Case

      Appellant, Cornell McHenry, was found guilty of Possession of a Controlled

Substance. The punishment range was enhanced to a first degree due to

Appellant’s prior felony conviction and the jury assessed punishment at forty-five

(45) years in the Institutional Division of the Department of Criminal Justice, and

the judge sentenced him accordingly.

      Appellant then perfected appeal to this Honorable Court. He now appeals the

verdict of the trial court on five points of error.




                                            8
                           Reply to Points of Error

                     REPLY TO POINT OF ERROR NUMBER ONE:

Sufficient evidence was presented to corroborate the co-defendant’s testimony to
sustain the Appelllant’s conviction

              REPLY TO POINTS OF ERROR NUMBER TWO AND THREE:

Evidence was sufficient to prove the elements of the offense beyond a reasonable
doubt.

                    REPLY TO POINT OF ERROR NUMBER FOUR:

The jury was given a proper accomplice witness instruction, but any error in
submitting the issue of accomplice status to the jury did not egregiously harm the
Appellant.

                     REPLY TO POINT OF ERROR NUMBER FIVE:

The jury was given a proper limiting instruction regarding extraneous offenses in
the court’s charge. Any error in not giving a contemporaneous instruction at the
time the evidence was offered was harmless.




                                         9
                            Summary of the Argument

                     REPLY TO POINT OF ERROR NUMBER ONE:

      Sufficient evidence was presented to corroborate the co-defendant’s
      testimony to sustain the Appelllant’s conviction

      Viewing the evidence presented at trial in a light most favorable to the jury

verdict and eliminating the accomplice’s testimony, the corroboration of the

accomplice testimony was sufficient. While the nonaccomplice evidence may not

establish guilt beyond a reasonable doubt, or not prove all the elements of the

alleged offense by itself, it does tend to connect the defendant with the commission

of the offense as required. Therefore, the corroboration of the accomplice

testimony was sufficient.



              REPLY TO POINTS OF ERROR NUMBER TWO AND THREE:

      Evidence was sufficient to prove the elements of the offense beyond a
      reasonable doubt.

      Viewing the evidence presented at trial in the light most favorable to the

jury’s verdict, this Court can determine a rational jury could have found the

essential elements of the offense beyond a reasonable doubt.




                                        10
                     REPLY TO POINT OF ERROR NUMBER FOUR:

      The jury was given a proper accomplice witness instruction, but any
      error in submitting the issue of accomplice status to the jury did not
      egregiously harm the Appellant.

      The jury instructions submitted DeQueener Mitchell’s status as an

accomplice to the jury and required them to find her testimony corroborated by

other evidence. Even though the trial court submitted the issue to the jury, no

rational jury would have found that she was not an accomplice to the crime.

Submitting the accomplice witness issue to the jury did not result in egregious

harm to Appellant. Taking into account the charge itself, the state of the evidence

including contested issues and the weight of the probative evidence, arguments of

counsel, and any other relevant information revealed by the record of the trial as a

whole, the Appellant did not suffer egregious harm.



                   REPLY TO POINT OF ERROR NUMBER FIVE:

      The jury was given a proper limiting instruction regarding extraneous
      offenses in the court’s charge. Any error in not giving a
      contemporaneous instruction at the time the evidence was offered was
      harmless.

   In his fifth point of error, the Appellant contends the trial court erred when it

did not give a limiting instruction at the admission of extraneous offenses and

failed to instruct the jury to disregard the evidence as a matter of law. However, the

trial court submitted a proper limiting instruction in the jury charge. Because the
                                         11
Appellant has failed to demonstrate harm in the failure to instruct the jury at the

time the evidence was admitted, any error in the timing of the court's instruction to

the jury did not affect his substantial rights.




                                            12
                                           Argument

                               Reply to Point of Error One

          Sufficient evidence was presented to corroborate the co-defendant’s
          testimony to sustain the Appelllant’s conviction

          In point of error number one, the Appellant argues that the trial court erred

in denying his motion for a directed verdict because the co-defendant’s testimony

was not adequately corroborated. However, viewing the evidence presented at trial

in a light most favorable to the jury verdict and eliminating the accomplice’s

testimony, the corroboration of the accomplice testimony was sufficient.

                                  Argument and Authorities

A. Standard of Review

          Under the accomplice witness rule, one cannot be convicted on the

testimony of an accomplice unless that testimony is corroborated by other evidence

tending to connect the defendant with the offense committed.1 To determine the

sufficiency of corroboration, the reviewing court must view the corroborating

evidence in the light most favorable to the jury’s verdict.2 The test for weighing the

sufficiency of corroborating evidence is to eliminate from consideration the

accomplice’s testimony, and then examine the remaining testimony and evidence

to determine if there is evidence that tends to connect the defendant with the


1
    Texas Code Crim. Proc. art. 38.14.
2
    Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
                                                 13
commission of the offense.3 The nonaccomplice evidence does not have to directly

link the accused to the crime, does not have to establish guilt beyond a reasonable

doubt, and need not prove all the elements of the alleged offense.4

B. Application of Law to Facts

       Viewing the evidence presented at trial in a light most favorable to the jury

verdict and eliminating the accomplice’s testimony, the corroboration of the

accomplice testimony was sufficient.

       During surveillance conducted in the months leading up to the arrest,

officers determined that Cornell McHenry resided at the home at 516 Waterman.

(R.R. Vol. 3, p. 37). Believing there was illegal drug activity at the house, officers

secured a no-knock search warrant for the house at 516 Waterman based on the

probable cause they developed as a result of the surveillance. (R.R. Vol. 3, p. 37).

       Officers determined Cornell McHenry was a resident 516 Waterman Street.

(R.R. Vol. 3, p. 37). Officer Mark Shermer testified that a confidential informant

was used to conduct a controlled buy and the information acquired from the

informant helped establish probable cause for a search warrant of the residence.

(R.R. Vol. 3, p. 61-62)




3
  Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Hall v. State, 161 S.W.3d 142,
149 (Tex. App.—Texarkana 2005, pet. ref’d).
4
  Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559.
                                             14
      Officer Jones testified that after making entry into the residence, the officers

found suspected marijuana, methamphetamine, and prescription medications in the

house. (R.R. Vol. 3, p. 45, 72, 86). A set of small scales, consistently used by

people to weigh out quantities of drugs, were also found. (R.R. Vol. 3, p. 45, 72).

There were also plastic baggies commonly used in the packaging of illegal drugs

found in the residence. (R.R. Vol. 3, p. 49). In a bedroom there was a flashlight

found and inside was hidden the methamphetamine. (R.R. Vol. 3, p. 51). Officer

Thomson testified he observed Mr. McHenry walking from the bedroom. (R.R.

Vol. 3, p. 87). The officers confirmed that Mr. McHenry lived at the residence by

finding mail with his name and the 516 Waterman address. (R.R. Vol. 3, p. 52).

Both Cornell McHenry and DeQueener Mitchell were the only two present at the

location when the search warrant was executed. (R.R. Vol. 3, p. 69). Mr. McHenry

was found to have a large amount of cash on him- $1,395.00—however Mr.

McHenry was not employed at the time. (R.R. Vol. 3, p. 70).

C. Conclusion

      While the nonaccomplice evidence may not establish guilt beyond a

reasonable doubt, or not prove all the elements of the alleged offense by itself, it

does tend to connect the defendant with the commission of the offense as required.

Therefore, the corroboration of the accomplice testimony was sufficient.

      For these reasons, Appellant’s first point of error should be overruled.


                                         15
                     Reply to Points of Error Two and Three

         Evidence was sufficient to prove the elements of the offense beyond a
         reasonable doubt.

         In his second point of error, Appellant complains the evidence is factually

insufficient to support his conviction. In the third point of error, Appellant

contends the evidence is legally insufficient. However, viewing the evidence

presented at trial in the light most favorable to the jury’s verdict, this Court can

determine a rational jury could have found the essential elements of the offense

beyond a reasonable doubt. The State will reply jointly to points of error two and

three.

                                 Argument and Authorities

A. Standard of Review

         Appellant asserts in his second point of error that there is factually

insufficient evidence to support his conviction. In Brooks v. State5, a plurality of

the Texas Court of Criminal appeals abolished the factual sufficiency review it had

previously announced in Clewis v. State6. In his third point of error, the Appellant

challenges the legal sufficiency of the evidence. This Court should review his point

of error for its legal sufficiency to sustain the conviction. In reviewing the


5
    323 S.W.3d 893, 894-96 (Tex. Crim. App. 2010) (4-1-4 decision).
6
    922 S.W.2d 126 (Tex. Crim. App. 1996).
                                               16
sufficiency of the evidence, this Court should apply the standard set out in Jackson

v. Virginia, 443 U.S. 307 (1979). This standard requires a reviewing court to

examine all the evidence in the light most favorable to the verdict to determine

whether a rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.7 This standard of review applies to cases

involving both direct and circumstantial evidence.8 The reviewing court should

consider everything presented at trial but should not substitute their own judgment

regarding the weight and credibility of the evidence for that of the fact finder.9

Further, an appellate court presumes the fact finder resolved conflicting inferences

in favor of the verdict, and defers to that determination.10 The question is not

whether the appellate court itself believes the defendant is guilty beyond a

reasonable doubt, but whether viewing the evidence in the light most favorable to

the verdict, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.11

       Legal sufficiency of the evidence is measured by the elements of the offense

as defined by a hypothetically correct jury charge.12 The hypothetically correct jury

charge sets out the law, is authorized by the indictment, does not unnecessarily


7
  443 U.S. 307, 319 (1979).
8
  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
9
  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
10
   Clayton, 235 S.W.3d at 778.
11
   Jackson, 443 U.S. at 318-19.
12
   Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
                                              17
increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of

liability, and adequately describes the particular offense for which the defendant

was tried.13 In this case, Appellant committed possession of a controlled substance

if he intentionally possessed a controlled substance.

B. Application of Law to Facts

       To prevail in a case of possession of a controlled substance under Texas

Health & Safety Code Section 481.115, the state must prove an individual

knowingly or intentionally possessed a controlled substance. To prove possession,

the state must prove that Appellant exercised care, custody, control, or

management over the controlled substance and that he knew the matter possessed

was contraband.14 Mere presence at the location where drugs are found is

insufficient by itself to establish possession.15 However, presence or proximity to

drugs, combined with other direct or circumstantial evidence, may be sufficient to

establish care, custody, control or management, if it amounts to more than a strong

suspicion or probability.16

       Texas courts have recognized the following as affirmative links which can

be used to establish a defendant’s possession of contraband:



13
   Id.
14
   See Blackman v. State, 350 S.W.3d 588, 596 (Tex. Crim. App. 2011); see also Tex. Penal
Code § 1.07(a)(39).
15
   Evans v. State, 202 S.W.2d 158, 161 (Tex. Crim. App. 2006).
16
   Id.
                                             18
       (1) The accused’s presence when a search is conducted, (1) whether the
           contraband was in plain view; (3) the accused’s proximity to and the
           accessibility of the narcotic; (4) whether the accused was under the
           influence of narcotics when arrested; (5) whether the accused possessed
           other contraband or narcotics when arrested; (6) whether the accused
           made incriminating statements when arrested; (7) whether the accused
           attempted to flee; (8) whether the accused made furtive gestures; (90
           whether there was an odor of contraband; (10) whether other contraband
           or drug paraphernalia were present; (11) whether the accused owned or
           had right to possess the place where the drugs were found; (12) whether
           the place the drugs were found was enclosed; (13) whether the accused
           was found with a large amount of cash; and (14) whether the conduct of
           the accused indicated a consciousness of guilt.17


       In addition, it is well established that a person may jointly possess

contraband with another and possession does not need to be exclusive.18

       The testimony at trial established that the Appellant (1) was present when

the search was conducted, (2) was in close proximity and had access to the

narcotic, (3) there was other contraband found at the home during the search, (4)

the Appellant owned or had the right to possess the place where the drugs were

found; and (5) the Appellant was found with a large amount of cash on his person.

There were at least these five affirmative links which establish the Appellant

possessed the methamphetamine. In addition, Mrs. Mitchell testified the

methamphetamine belonged to the Appellant, that he sold the drugs, and that she

had witnessed him put the drugs into the flashlight. The number of links present is


17
   Wright v. State, 401 S.W.3d 813, 818-19 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
18
   McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
                                              19
not as important as the degree to which they tend to link the defendant to the

controlled substance.19

         At trial, officers of the Texarkana Texas Police Department testified that

they executed a search warrant at 516 Waterman Street. (R.R. Vol. 3, p. 41, 59-60,

67, 85). The search warrant was based on months of surveillance done at the

location. Officers stopped individuals leaving the residence, and they were found

to have drugs in their possession. (R.R. Vol. 3, p. 37, 84). Officers determined

Cornell McHenry was a resident 516 Waterman Street. (R.R. Vol. 3, p. 37). Officer

Mark Shermer testified that a confidential informant was used to conduct a

controlled buy and the information acquired from the informant helped establish

probable cause for a search warrant of the residence. (R.R. Vol. 3, p. 61-62)

         Officer Jones testified that after making entry into the residence, the officers

found suspected marijuana, methamphetamine, and prescription medications in the

house. (R.R. Vol. 3, p. 45, 72, 86). A set of small scales, consistently used by

people to weigh out quantities of drugs, were also found. (R.R. Vol. 3, p. 45, 72).

There were also plastic baggies commonly used in the packaging of illegal drugs

found in the residence. (R.R. Vol. 3, p. 49). In a bedroom there was a flashlight

found and inside was hidden the methamphetamine. (R.R. Vol. 3, p. 51). The

bedroom was the room Mr. McHenry and Ms. Mitchell were seen coming from.


19
     Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.).
                                                20
(R.R. Vol. 3, p. 73). Officer Thomson testified he observed Mr. McHenry walking

from the bedroom. (R.R. Vol. 3, p. 87).The officers confirmed that Mr. McHenry

lived at the residence by finding mail with his name and the 516 Waterman

address. (R.R. Vol. 3, p. 52). Both Cornell McHenry and DeQueener Mitchell were

the only two present at the location when the search warrant was executed. (R.R.

Vol. 3, p. 69). Mr. McHenry was found to have a large amount of cash on him-

$1,395.00—however Mr. McHenry was not employed at the time. (R.R. Vol. 3, p.

70, 95).

      DeQueener Mitchell, the co-defendant, testified that at the time the home

was searched, she had been in a relationship with McHenry for about three years.

(R.R. Vol. 3, p. 91). She stated that the prescription medication and marijuana

found in the home was hers but that the methamphetamine found in the flashlight

was not. (R.R. Vol. 93-94). Mitchell testified she had personally seen McHenry put

the methamphetamine inside of the flashlight and it was something he commonly

did. (R.R. Vol. 3, p. 94). Both Cornell and Mitchell were charged with possession

of the marijuana, prescription medication, and methamphetamine. (R.R. Vol. 3, p.

96). Mitchell pled guilty to the charges and was placed on probation. (R.R. Vol. 3,

p. 96).

      The methamphetamine was found in the house where McHenry was living.

Mitchell testified she had seen him hid the methamphetamine in the flashlight.


                                        21
These links have a strong tendency to connect the Appellant to the contraband

found in the home.



C. Conclusion

      The State produced sufficient evidence that would allow a rational juror to

conclude that the Appellant knowingly or intentionally exercised care, custody,

control, or management over the drugs. Therefore, legally sufficient evidence

exists to support Appellant’s conviction.

      For the above-mentioned reasons, Appellant’s second and third points of

error should be overruled.



                        Reply to Point of Error Four

      The jury was given a proper accomplice witness instruction, but any
      error in submitting the issue of accomplice status to the jury did not
      egregiously harm the Appellant.

      In his fourth point of error, Appellant argues the trial court erred in failing to

instruct the jury that DeQueener Mitchell was an accomplice as a matter of law.

Appellant asserts he suffered egregious harm because the jury was not instructed

that DeQueener Mitchell was an accomplice as a matter of law. However, the jury

instructions submitted Mitchell’s status as an accomplice to the jury and required

them to find her testimony corroborated by other evidence. There was no evidence

                                            22
presented at trial that DeQueener was not an accomplice. Even though the trial

court submitted the issue to the jury, no rational jury would have found that she

was not an accomplice to the crime. The non-accomplice evidence is reliable and

connected Appellant to possession of the methamphetamine independent of

Mitchell’s testimony. Submitting the accomplice witness issue to the jury did not

result in egregious harm to Appellant. Taking into account the charge itself, the

state of the evidence including contested issues and the weight of the probative

evidence, arguments of counsel, and any other relevant information revealed by the

record of the trial as a whole, the Appellant did not suffer egregious harm.

                               Argument and Authorities

A. Standard of Review

     Appellate review of a purported error in the jury charge involves a two-step

process. 20 First, the reviewing court must determine whether the jury instruction is

erroneous.21 Second, if error occurred, then an appellate court must analyze that

error for harm.22 In examining the charge for possible error, reviewing courts

“must examine the charge as a whole instead of a series of isolated and unrelated

statements.”23



20
   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on
other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
21
   Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
22
   Id. at 744.
23
   Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
                                              23
       When jury instruction errors occur, review of the charge is under the

Almanza standard.24       An erroneous jury charge does not result in automatic

reversal of the conviction or punishment.25 Instead, sufficient harm must have

resulted from the error to require reversal.26

       The level of harm an appellant must demonstrate as having resulted from the

erroneous jury instruction depends on whether the appellant properly objected to

the error.27 When a proper objection is made at trial, reversal is required if the error

is “calculated to injure the rights of defendant”—the appellant need only

demonstrate “some harm” on appeal.28 In the case of unpreserved error, reversal is

required only when “the error is so egregious and created such harm that he ‘has

not had a fair and impartial trial’—in short ‘egregious harm.’”29 “Egregious harm”

results from errors affecting the very basis of the case or that deprive the defendant

of a valuable right, vitally affect a defensive theory, or make the case for

conviction or punishment clearly and significantly more persuasive.30

       In either event, when conducting a harm analysis the reviewing court may

consider the following four factors: 1) the charge itself; 2) the state of the evidence

24
   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
25
   Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1984).
26
   Id. at 731-32; Almanza, 686 S.W.2d at 171.
27
   Abdnor, 871 S.W.2d at 732.
28
   Id.; see also Almanza, 686 S.W.2d at 171.
29
   Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana
1996, pet. ref’d).
30
   Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Boones v. State, 170 S.W.3d
653, 660 (Tex. App.—Texarkana 2005, no pet.).
                                             24
including contested issues and the weight of the probative evidence; 3) arguments

of counsel; and, 4) any other relevant information revealed by the record of the

trial as a whole.31

       Since error was not preserved, reversal is not required unless “the error is so

egregious and created such harm that [the defendant] ‘has not had a fair and

impartial trial’ – in short ‘egregious harm.’”32 “Errors which result in egregious

harm are those which affect ‘the very basis of the case,’ deprive the defendant of a

‘valuable right,’ or ‘vitally affect a defensive theory’.” 33 Egregious harm is a

difficult standard to prove and such a determination must be done on a case-by-

case basis.34

       If there is substantial non-accomplice evidence linking the defendant to the

offense, any error is harmless.35 Substantial non-accomplice evidence linked

Appellant to the offense. That evidence has been detailed in this brief previously in

the State’s response to Appellant’s points of error one, two, and three. Therefore,

the error in failing to instruct the jury that Mitchell was an accomplice as a matter

of law did not egregiously harm the Appellant.




31
   Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (citing Almanza).
32
   Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App. – Texarkana
1996, pet. ref’d).
33
   Hutch v. State, 922 S.W.2d 116, 171 (Tex. Crim. App. 1996)(quoting Almanza)
34
   Id.
35
   State v Medina, 7 S.W.3d 633, 642 (Tex, Crim. App. 1999)
                                             25
B. Application of Law to Facts

       Case law indicates that jury submission of a witness’s status has long been

preferred by the appellate courts.36 However, later decisions reflect approval of

sometimes taking the issue from the jury where the evidence unquestionably shows

that a witness is an accomplice.37 The trial court should instruct the jury that a state

witness is an accomplice as a matter of law “when the witness is charged with the

same offense as the defendant.”38 The proposed charge stated the issue as giving

the determination on DeQueener’s witness status to the jury. (C.R. p. 62).

       After review of the charge, during the charge conference, the following

statements were made:



       THE COURT:             We’re outside the presence of the jury. We’ve had an

       opportunity to review the proposed charge. Any objections?

       DEFENSE:               Yes, sir. Judge, we’ve had an opportunity to review it.

       There were a couple of changes that we requested that were made and

       included, so we have no objections at this time.

       (R.R. Vol. 3, p. 154).
36
   See Zollicoffer v. State, 16 Tex. Ct. App. 312 (1884)(“It has been the practice in such cases to
submit this issue to the jury, and, believing the practice to be a safe and proper one, and in
harmony with the spirit of our system of procedure, we are not disposed to change it.”).
37
   See Swan v. State, 76 S.W. 464, 465 (Tex. Crim. App. 1903).
38
   See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
                                                 26
       Because this alleged jury charge error was not timely objected to—in fact

was agreed to—the higher standard of harm must be established. The Appellant

must demonstrate that the error was so egregious and created such harm that it

deprived him of a fair and impartial trial.

       Although the trial court did not instruct the jury that Mitchell was an

accomplice as a matter of law, it did instruct the jury on the law of accomplice

testimony, reciting the language of Texas Code of Criminal Procedure Article

38.14 verbatim.39 Mitchell testified that she had been indicted for her part in the

crime. Furthermore, both the State and Appellant’s trial counsel repeatedly stated

that Mitchell was an accomplice or co-defendant during closing arguments. (R.R.

Vol. 3, p. 157-158, 160-161). Based on this record, any reasonable juror would

have concluded that Mitchell was an accomplice and applied the trial court's

instruction on accomplice testimony accordingly.40 The evidence at trial that

Mitchell was also in possession of the narcotics was unrefuted and unquestioned.

That, along with the State’s affirmation to the jurors in final argument that Mitchell

was a co-defendant, confirm that only an unreasonable jury would find that

Mitchell was not an accomplice and consequently would base Appellant’s

39
  See Tex. Code Crim. Proc. art. 38.14.
40
  See DeBlanc v. State, 799 S.W.2d 701, 710–11 (Tex.Crim.App.1990) (“Given the unrefuted,
unquestioned evidence that [the witness] was an active participant in the murder ... only an
unreasonable jury would find that the State's witness was not an accomplice...”).
                                             27
conviction solely upon her testimony. Courts will “presume that jurors, conscious

of the gravity of their tasks, attend closely the particular language of the trial

court's instructions in criminal cases and strive to understand, make sense of, and

follow the instructions given them.”41

C. Harm Analysis

       Under the egregious harm standard, the omission of an accomplice witness

instruction is generally harmless unless the corroborating (non-accomplice)

evidence is “so unconvincing in fact as to render the State's overall case for

conviction clearly and significantly less persuasive.”42 This analysis requires the

examination of the strength of non-accomplice evidence by assessing its reliability

or believability and the degree to which it connects the defendant to the crime. 43

       As discussed previously in reply to point of error one, two, and three in this

brief, the accomplice witness testimony was sufficiently corroborated. The non-

accomplice evidence is reliable and connected Appellant to possession of the

methamphetamine independent of Mitchell’s testimony. Submitting the accomplice

witness issue to the jury did not result in egregious harm to Appellant.


41
   Francis v. Franklin, 471 U.S. 307, 324 n. 9 (1985); See also Parker v. Randolph, 442 U.S. 62,
75 n. 7 (1979) (“The rule—indeed, the premise upon which the system of jury trials function
under the American judicial system—is that juries can be trusted to follow the trial court's
instructions.”).
42
   Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002), quoting Saunders v. State, 817
S.W.2d 688, 692 (Tex.Crim.App. 1991); Jones v. State, 195 S.W.3d 279, 290 (Tex.App.–Fort
Worth 2006, no pet.).
43
   Herron, 86 S.W.3d at 632.
                                              28
      Based on the foregoing, this Court can conclude that any error in failing to

instruct the jury that Mitchell was an accomplice as a matter of law was not

egregiously harmful.

D. Conclusion

      The issue of whether Mitchell was an accomplice witness was submitted to

the jury. However, there the evidence at trial was unrefuted that Mitchell was an

accomplice. Therefore, following the jury instructions, any rational juror would

require her testimony to be corroborated in order to convict. Submitting the

accomplice witness issue to the jury did not result in egregious harm to Appellant.

      For the above-mentioned reasons, Appellant’s fourth point of error should be

overruled.



                         Reply to Point of Error Five

      The jury was given a proper limiting instruction regarding extraneous
      offenses in the court’s charge. Any error in not giving a
      contemporaneous instruction at the time the evidence was offered was
      harmless.

   In his fifth point of error, the Appellant contends the trial court erred when it

did not give a limiting instruction at the admission of extraneous offenses and

failed to instruct the jury to disregard the evidence as a matter of law. However, the

trial court submitted a proper limiting instruction in the jury charge. (C.R. p. 63-


                                         29
64). When the jury was deliberating, they had been instructed not to consider the

evidence for purposes of character conformity. Because the Appellant has failed to

demonstrate harm in the failure to instruct the jury at the time the evidence was

admitted, any error in the timing of the court's instruction to the jury did not affect

his substantial rights.

                               Argument and Authorities

A. Standard of Review

     Appellant frames this issue as of one jury instruction error. Appellate review of
                                                                                 44
a purported error in the jury charge involves a two-step process.                     First, the

reviewing court must determine whether the jury instruction is erroneous.45

Second, if error occurred, then an appellate court must analyze that error for

harm.46 In examining the charge for possible error, reviewing courts “must

examine the charge as a whole instead of a series of isolated and unrelated

statements.”47 However, a review of the jury charge shows it does include a proper

limiting instruction regarding extraneous offenses.

     Because there was no error in the jury charge as it relates to the limiting

instruction, this type of alleged error is better addressed as a failure of the trial



44
   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on
other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
45
   Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
46
   Id. at 744.
47
   Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
                                              30
court to give a limiting instruction contemporaneous with the admission of

extraneous evidence.

   Texas Rules of Evidence 105 provides that “the court, upon request, shall

restrict the evidence to its proper scope and instruct the jury accordingly.” During

the trial, Appellant requested that the jury be instructed on the purpose for which

they could consider the extraneous offense testimony. The trial court did not give

the instruction at the time the evidence was admitted, but gave the instruction in its

charge to the jury. This Court must next examine whether any error in the failure

of the trial court to give a limiting instruction contemporaneously with the

admission of the extraneous offense was harmless.

B. Harm Analysis

   The State sought to introduce evidence through witness Mike Jones that prior to

the search performed at Appellant’s house, surveillance had been set up at the

residence. (R.R. Vol. 3, p. 17). The testimony was that individuals were observed

going to the residence, one or more of the occupants would go up to the house,

then leave a short time later. (R.R. Vol. 3, p. 18). On a couple of occasions, the

cars were stopped leaving and the occupants of the vehicle had methamphetamine

in their possession. (R.R. Vol. 3, p. 18). Officer Jones testified he had no personal

knowledge from the individuals stopped that went into the residence that they

purchased drugs specifically from the Appellant. (R.R. Vol. 3, p. 19). The


                                         31
information gathered from the surveillance gave the officers probably cause and

reasonable suspicion to believe drug activity was going on at the residence and

gave them a reason to request a search warrant for the house to see if drugs were in

the residence. (R.R. Vol. 3, p. 19).

   Appellant objected to the evidence at trial as being inadmissible extraneous

offense evidence. (R.R. Vol. 3, p. 20-21). The State asserted the surveillance

information was being offered to show how the officers developed probable cause

to request a search warrant and that there would be no testimony that Appellant

was seen dealing drugs at the house. (R.R. Vol. 3, p. 21). The trial court found the

evidence was relevant to show the circumstances leading up to the search warrant

and further found that the probative value of the evidence outweighed any

prejudicial effect. (R.R. Vol. 3, p. 22-23). The court properly limited the testimony

and prevented the introduction of any evidence the Appellant was dealing drugs

out of the house. (R.R. Vol. 3, p. 23).

   Later, over the Defendant’s objections, DeQueener Mitchell was allowed to

testify that she had personally seen the Appellant sell methamphetamine in the

past. (R.R. Vol. 3, p. 94).

   During the trial, Appellant objected to the extraneous offense and its relevance.

At this point he did not request that the jury be instructed on the purpose for which

they could consider the extraneous offense testimony. (R.R. Vol. 3, 94). The trial


                                          32
court did not give the instruction at the time the evidence was admitted, but gave

the instruction in its charge to the jury.

      Appellant relies on the Court of Criminal Appeal’s decision in Rankin v. State48

for the proposition that it is reversible error for the trial court to give a limiting

instruction for the first time during the jury charge. However, on remand, the

Houston Court of Appeals held in Rankin, 995 S.W.2d 210 that the error in giving

limiting instruction in the jury charge, instead of at the time the extraneous offense

testimony was admitted, did not affect a substantial right, and thus was not

reversible error, where there was no evidence to show that jury formed an opinion

prior to the time it began its deliberation.49

      In the instant case, the trial court submitted a proper limiting instruction in the

jury charge. (C.R. p. 63-64). When the jury was deliberating, they had been

instructed not to consider the evidence for purposes of character conformity. There

is no evidence to show the jury formed an opinion prior to the time it began its

deliberation. Additionally, the indictment that was read to the jury was clear which

bad act was the basis for the criminal charge against the Appellant.

      Because the Appellant has failed to demonstrate harm in the failure to instruct

the jury at the time the evidence was admitted, any error in the timing of the court's

instruction to the jury did not affect his substantial rights.

48
     Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996).
49
     Rankin v. State, 995 S.W.2d 210, 215 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
                                                33
C. Conclusion

      The trial court submitted a proper limiting instruction in the jury charge,

even though one was not given to the jury at the time the evidence was introduced.

The Appellant did not suffer harm, therefore any error in the timing of when the

instruction was given did not affect his substantial rights.

      For the above-mentioned reasons, Appellant’s fifth point of error should be

overruled.




                                          34
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.



                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819



                                               _/s/ Lauren N. Sutton___________
                                               By: Lauren N. Sutton
                                               Assistant District Attorney
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819
                                               Lauren.sutton@txkusa.org

                                               Attorneys for the State




                                          35
                             Certificate of Compliance

      I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of

Appellate Procedure, Appellee’s Brief contains 5,142 words, exclusive of the

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.



                                               /s/ Lauren N. Sutton
                                               Lauren N. Sutton




                                          36
                              Certificate of Service

      I, Lauren N. Sutton, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Mr. Bart Craytor, Attorney for Appellant, on

this the 24th day of March 2015.



                                             __/s/ Lauren N. Sutton___________
                                             Lauren N. Sutton




                                        37
