                                                                                  AP-77,056
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                        No. AP-77,056                          Transmitted 5/6/2015 6:00:30 PM
May 7, 2015             No. AP-77,057                            Accepted 5/7/2015 8:22:36 AM
                                                                                ABEL ACOSTA
                        No. AP-77,058                                                   CLERK

                               In the
              Court of Criminal Appeals of Texas
                             In Austin

                     

                          No. 1383239
                          No. 1461060
                          No. 1461070
                     In the 185th District Court
                      Of Harris County, Texas

                     

                CRAIG ROSS SHEPHARD
                              Appellant
                                V.
                 THE STATE OF TEXAS
                              Appellee

                     

               STATE’S APPELLATE BRIEF

                     

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                   ALAN CURRY
                                                   State Bar No: 05263700
                                                   Assistant District Attorney
                                                   Harris County, Texas

                                                   JUSTIN KEITER
                                                   Assistant District Attorney
                                                   Harris County, Texas

                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   Tel.: 713/755-5826
                                                   FAX No.: 713/755-5809
                                                   curry_alan@dao.hctx.net

               ORAL ARGUMENT NOT REQUESTED
               STATEMENT REGARDING ORAL ARGUMENT

      The State does not oral argument.


                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Alan Curry  Assistant District Attorney on appeal

             Justin Keiter  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Craig Ross Shephard

      Counsel for Appellant:

             Javier Martinez  Counsel at trial and on appeal

      Trial Judge:

             Hon. Susan Brown  Presiding Judge




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                                           TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ......................................................i

IDENTIFICATION OF THE PARTIES ...........................................................................i

INDEX OF AUTHORITIES ..............................................................................................iii

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 3

SUMMARY OF THE ARGUMENT ................................................................................. 4

REPLY TO POINTS OF ERROR ..................................................................................... 4

CONCLUSION ..................................................................................................................... 7

CERTIFICATE OF COMPLIANCE ................................................................................ 8

CERTIFICATE OF SERVICE ........................................................................................... 9




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                                         INDEX OF AUTHORITIES
CASES

Criner v. State,
  878 S.W.2d 162 (Tex. Crim. App. 1994) ......................................................................... 5
Holloway v. State,
 781 S.W.2d 605 (Tex. Crim. App. 1989) ......................................................................... 5
Spell v. State,
  407 S.W.3d 264 (Tex. Crim. App. 2013) ......................................................................... 5
Thain v. State,
  721 S.W.2d 354 (Tex. Crim. App. 1986) ......................................................................... 6


RULES

TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i


CONSTITUTIONAL PROVISIONS

TEX. CONST. art. I, § 11a ....................................................................................................... 4




                                                                iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                          STATEMENT OF THE CASE

      In cause number 1383239, the appellant was charged by complaint with the

felony offense of possession of a controlled substance, alleged to have occurred on or

about April 5, 2013 (C.R. I-2), and the appellant was later indicted for the felony

offense of possession of a controlled substance with intent to deliver (C.R. I-12). The

complaint reflected that the appellant had been arrested on that same date and that his

bond had been set at $80,000.00 (C.R. I-2). The appellant subsequently made a bail of

$100,000.00 (C.R. I-7).

      At or near the same time, in cause number 1383240, the appellant also stood

charged with the felony offense of bribery (C.R. I-3, 23). On December 9, 2013, the

appellant entered a plea of guilty to the charged offense without an agreed

recommendation from the State as to punishment, but the State did agree to dismiss

the bribery charged in cause number 1383240 (C.R. I-67-68, 76; R.R. – State’s Exhibit

# 1). After the trial court found that the evidence substantiated the appellant’s guilt,

she placed the appellant on deferred adjudication community supervision for a period

of eight years and assessed a $2,000.00 fine (C.R. I-78; R.R. – State’s Exhibit # 1A).

On August 2, 2013, in cause number 13-02-01739-CR, in the 410th District Court of

Montgomery County, the appellant was convicted of the felony offenses of
possession of a controlled substance and money laundering, alleged to have been

committed on February 15, 2013 (R.R. – State’s Exhibits # 2, # 3).

        In cause number 1461069, the appellant was charged by complaint with the

felony offense of possession of a controlled substance, alleged to have occurred on or

about March 13, 2015 (C.R. II-2; R.R. – State’s Exhibit # 5). In cause number

1461070, the appellant was charged by complaint with the felony offense of

possession of a prohibited weapon, alleged to have occurred on or about March 13,

2015 (C.R. III-2; R.R. – State’s Exhibits # 4, # 4A). These new complaints were filed

on March 14, 2015 and reflected that the appellant was arrested on the same date as

the commission of the new offenses (C.R. II-2; C.R. III-2). On March 16, 2015, the

State moved to deny bail to the appellant, and—after a hearing—the trial court

granted that motion on March 19, 2015 (C.R. II-6; R.R. 52). On April 9, 2015, the

appellant filed a notice of appeal from the trial court’s ruling (C.R. I-96; C.R. II-18;

C.R. III-17).

                        




                                           2
                             STATEMENT OF FACTS

      The High Intensity Drug Trafficking Area task force had been conducting a

long-term investigation regarding the appellant’s involvement in the delivery and sale

of methamphetamine (R.R. 12-14). This long-term surveillance revealed that drug

dealing was occurring at a warehouse that was under the appellant’s control (R.R. 17-

18, 27). A warrant was eventually obtained for the appellant’s arrest (R.R. 16-17), and,

on March 12, 2015, a search warrant was obtained for the appellant (R.R. 19). In the

process of searching for the appellant at the warehouse, officers observed a

methamphetamine pipe and methamphetamine residue and also smelled marijuana

(R.R. 20-22).

      A search warrant was obtained for the location (R.R. – State’s Exhibit # 7), and

the resulting search of the location revealed the presence of approximately one pound

of methamphetamine (R.R. 22-24). In the bed of one of the vehicles at the location,

which the appellant had been seen driving and where the appellant had been observed

to be operating, officers also found several weapons, including an illegal short-barrel

shotgun (R.R. 23-24). The appellant was subsequently apprehended on March 13,

2015 (R.R. 25). The appellant was in possession of a methamphetamine pipe at that

time (R.R. 38).

                        




                                           3
                       SUMMARY OF THE ARGUMENT

      The appellant stands accused of two felony offenses involving the use of a

deadly weapon. The appellant had previously been convicted of at least two other

felony offenses.    The evidence presented by the State substantially showed the

appellant’s guilt of both offenses involving the use of several deadly weapons. And

the trial judge issued the order denying the appellant’s bail within seven days after the

appellant’s arrest. Therefore, the trial court’s ruling denying bail to the appellant

should be upheld.

                        




                         REPLY TO POINTS OF ERROR

      TEX. CONST. art. I, § 11a provides that a defendant may be denied bail pending

trial if he is accused of a felony offense involving the use of a deadly weapon after

having been convicted of a prior felony.           The State must present evidence

substantially showing the defendant’s guilt of the offense, and the trial judge must

issue the order within seven calendar days after the appellant’s arrest. All of those

conditions were met in these cases.

      In cause number 1461069, the appellant was charged with possession of a

controlled substance with the intent to deliver.       In cause number 1461070, the

appellant was charged with the felony offense of possession of a prohibited weapon,


                                           4
an illegal short-barrel shotgun, which is a deadly weapon—a firearm. The appellant

had previously been convicted of the offenses of possession of a controlled substance

and money laundering in Montgomery County. The evidence presented by the State

substantially showed the appellant’s guilt of both offenses involving the use of several

deadly weapons (R.R. – State’s Exhibit # 6). And the trial judge issued the order

denying the appellant’s bail on March 19, 2015, within seven days after the appellant’s

arrest on March 13, 2015.1

      The burden of proof of “substantially showing” a defendant’s guilt is far less

than proof beyond a reasonable doubt. Spell v. State, 407 S.W.3d 264 (Tex. Crim. App.

2013). The appellant ignores this lesser standard by urging the trial court and this

Court to apply holdings from cases in which the State bore the burden of proof of

beyond a reasonable doubt.

      The evidence in this case clearly showed that the appellant had control over the

warehouse and of the vehicle that was at that location. The finding of the illegal

narcotics and the large number of weapons (including the prohibited weapon) at these

locations was sufficient for a substantial showing of the appellant’s guilt of the

charged offenses, and it was also consistent with the appellant’s involvement in a

long-term illegal narcotics operation at that location. The State provided the trial

court with a strong nexus between the appellant and the contraband that was seized.

1
  After the passage of 60 days from the date of the appellant’s arrest, the appellant’s
appeal will become moot. See Criner v. State, 878 S.W.2d 162 (Tex. Crim. App. 1994);
Holloway v. State, 781 S.W.2d 605 (Tex. Crim. App. 1989).

                                           5
See Thain v. State, 721 S.W.2d 354, 355 (Tex. Crim. App. 1986). The trial court’s ruling

denying bail should be affirmed.

                        




                                           6
                                  CONCLUSION

      It is respectfully submitted that all things are regular and that the trial court’s

ruling should be affirmed.

                                                      DEVON ANDERSON
                                                      District Attorney
                                                      Harris County, Texas

                                                      /s/ Alan Curry

                                                      ALAN CURRY
                                                      Assistant District Attorney
                                                      Harris County, Texas
                                                      1201 Franklin, Suite 600
                                                      Houston, Texas 77002
                                                      (713) 755-5826
                                                      TBC No. 05263700
                                                      curry_alan@dao.hctx.net




                                           7
                     CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated document has

a word count of 1,149 words, based upon the representation provided by the word

processing program that was used to create the document.



                                                   /s/ Alan Curry

                                                   ALAN CURRY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   TBC No. 05263700
                                                   curry_alan@dao.hctx.net




                                        8
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on May 6, 2015:


      Javier O. Martinez
      Attorney at Law
      712 Main Street, Suite 2400
      Houston, Texas 77002


                                                     /s/ Alan Curry

                                                     ALAN CURRY
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 05263700
                                                     curry_alan@dao.hctx.net

Date: May 6, 2015




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