Lashonda Deon Jones v. State ( 2015 )

ACCEPTED
14-15-00300-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
9/28/2015 10:44:49 AM
CHRISTOPHER PRINE
CLERK
Case Number: 14-15-00300-CR
Case Number: 14-15-00301-CR FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
9/28/2015 10:44:49 AM
IN THE COURT OF APPEALS FOR THE CHRISTOPHER A. PRINE
Clerk
14th DISTRICT OF TEXAS
AT HOUSTON
LASHONDA DEON JONES
Appellant,
V.
THE STATE OF TEXAS
Appellee
Appealed from the 221st Judicial District Court
Montgomery County, Texas
Cause 15-01-00219-CR ct. 1 and 2
LASHONDA DEON JONES'S APPELLANT'S BRIEF
IDENTITIES OF PARTIES AND COUNSEL
JUDGE: Honorable Lisa Michalk
Montgomery County Courthouse
301 North Main Street
Conroe, Texas 77301
Phone: 936-538-8133
PROSECUTORS: Mrs. Monica A. Cooper
Assistant District Attorney
SBOT No. 24071344 -and-
Mrs. Sheri B. Culberson
Assistant District Attorney
SBOT No. 24012288
Montgomery County District
Attorney's Office
207 West Phillips, Second Floor
Conroe, Texas 77301
Phone: 936-539-7800
DEFENSE COUNSEL: Mr. Joseph W. Krippel
SBOT No. 24007515
2442o FM 1314, Suite 9
Porter, Texas 77365
Phone: 936-232-0073
APPELLANT: Mr. LASHONDA DEON JONES
#1999529
Plane State Jail
904 FM 686
Dayton, Texas 77535
APPELLANT'S ATTORNEY: Mr. Austin D. Black
Law Office of Austin D. Black
SBOT No. 24050018
215 Simonton Street
Conroe, Texas 77301
Phone: 936-242-7601
2
APPELLEE'S ATTORNEY: Mr. Brett Ligon
District Attorney
Montgomery County District
Attorney's Office
SBOT No. 00795966
207 West Phillips
Conroe, Texas 77301
Phone: 936-539-7800
INDEX OF AUTHORITIES
Cases
Anders v. California, 386 U.S. 738 (1967) 5, 6, 10
McCoy v. Court of Appeals, 486 U.S. 429 (1988) 7
Penson v. Ohio, 488 U.S. 75 (1988) 10
Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908
(1966); Tea v. State, 453 S.W.2d 179, 181 (Tex. Crim. App. 1970) 9
Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) 6, 10
High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978) 5, 6
Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) 9
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). ... ... ... ... ... ... ... ... ... 7
Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). .............................. 7
Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 112
L. Ed. 2d 333, 111 S. Ct. 371 (1990) 8
Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.-Waco 1994, pet. Ref d) (quoting
McCoy, 486 U.S. at 436.). 7
Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). 7
Wilson v. State, 955 S.W.2d 693, 695 n. 2 (Tex. App.-Waco 1997, no pet.) (quoting High,
573 S.W.2d at 813). 6
Statutes and Treatises
Texas Rules of Evidence §901 8
DIX & DAWSON §38.148 10
4
ISSUES PRESENTED
After a careful review of the record, Counsel for Appellant has identified no
appellate issues that would persuade a court of appeals.
STATEMENT OF THE CASE
Appellant was charged by indictment for one count of the felony offense of
Possession of a Controlled Substance, alleged to have been committed on or about May
14, 2014 pursuant to Texas Penal Code §481.115. 1 In the second count Appellant was
charged by indictment for Tampering with Physical Evidence, alleged to have been
committed on or about May 14, 2014 pursuant to Texas Penal Code §37.09. 2
On January 28, 2015, a jury found the Appellant guilty of both offenses. 3
On January 29, 2015, the judge sentenced the Appellant to forty-five (45) years
confinement in the Texas Department of Criminal Justice, Institutional Division in each
case to run concurrently.`
Written Notice of Appeal was timely entered of record, and the Appellant files his
brief on the merits. 5
STATEMENT OF FACTS
In May of 2014 a couple of women kept renting out rooms and then a few days
later asking to switch rooms at the Econo Lodge in Conroe, Texas. 6 The owner contacted
a Narcotics Officer that he had regular contact with when reporting issues he notices at
'Clerk's Rec. Vol. I, at 43.
2 Clerk's Rec. Vol. I, at 43.
3 Clerk's Rec. Vol. 1. at 123-25.
4 Clerk's Rec. Vol. I. at 122.
5 Clerk's Rec. Vol. I. at 128.
6 Reporter's Rec. Vol. IV, at 35.
5
his hotel.' Officer Foxworth was informed of an inordinate amount of foot traffic
occurring in the rooms and he ran the names of the individuals that had rented the room
and discovered they had narcotics history. 8 Officer Foxworth then ran his narcotics dog
on Room 136 that was rented to Lashonda Jones and the dog alerted to the presence of
narcotics at that location. 9 Officer Foxworth then requested and received a warrant from
a Montgomery County Judge and took it to the location to execute it. 10 Officer Foxworth
uses the key card he received from the owner to open the door to the room and Appellant
was on the other side of the door trying to force it back closed." At this same time
Officer Foxworth sees Appellant stuffing something into her shirt. 12 After everyone in
the room was subdued a female officer was called to search Appellant, at which time a
Scope bottle containing PCP was discovered in the bra area of Appellant. 13
SUMMARY OF THE ARGUMENT
Counsel for Appellant has reviewed the appellate record and has found that there
are no arguable grounds for advancing an appea1. 14 There is no reversible error upon
which an appeal can be predicated 15 . Under controlling authority, there are no errors in
the trial court's judgment. 16
Reporter's Rec. Vol. IV, at 34.
8 Reporter's Rec. Vol. IV, at 36.
9 Reporter's Rec. Vol. IV, at 46.
10 Reporter's Rec. Vol. IV, at 48-51.
I I Reporter's Rec. Vol. IV, at 56-57.
12 Reporter's Rec. Vol. IV, at 59.
13 Reporter's Rec. Vol. IV, at 74.
14 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n. 3.
15 Anders, 386 U.S. at 744-45.
16 High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).
6
Possible grounds for appeal in this case are limited to a possible abuse of
discretion in admitting evidence as well as error in allowing the State, over Appellants
objection, to take her fingerprints in open court during the punishment phase in order to
establish the admissibility of pen packets showing prior convictions. The only theories
that Appellant's attorney can discover after a conscientious review of the record and the
law are arguments that cannot conceivably persuade the appellate court. Further, counsel
can identify no potentially arguable issues.
ARGUMENT
When appointed counsel files an Anders brief, a Court of Appeals is to conduct an
independent review of the record to determine whether there are any arguable grounds for
appeal." If an Anders brief raises potentially arguable issues, the reviewing court's "duty
is to determine whether there are any arguable grounds and if there are, to remand to the
trial court so that new counsel may be appointed to brief the issues." I8 A Court of
Appeals is not required to review the merits of each claim raised in an Anders brief.
Any issue that is "arguable on [the] merits" is, by definition, not frivolous. 19 The
United States Supreme Court has defined a "wholly frivolous" appeal as one that "lacks
any basis in law or fact." 2° "An appeal is 'frivolous' when 'the trial court's ruling[s
were] correct' or 'the appellant was not harmed by the ruling[s].'" 21 Once counsel has
determined that an appeal is frivolous, counsel must file a brief identifying anything in
17 See Stafford, 813 S.W.2d at 511.
18 Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).
19 See Anders, 386 U.S. at 744.
20 McCoy v. Court of Appeals, 486 U.S. 429, 438 n. 10 (1988).
21 Wilson v. State, 955 S.W.2d 693, 695 n. 2 (Tex. App.—Waco 1997, no pet.) (quoting
High, 573 S.W.2d at 813).
7
the record that might arguably support the appeal and discussing either why the trial
court's rulings were correct or why the appellant was not harmed by the rulings. 22 "If the
only theories that the attorney can discover after [a] conscientious review of the record
and the law are 'arguments that cannot conceivably persuade the court,' then the appeal
should be considered frivolous." 23
I. A Claim That the Chain of Custody of the Narcotics Was Not Established
Would Not Succeed on Direct Appeal
A. Standard of Review
A trial court's decision to admit or exclude evidence is reviewed for abuse of
discretion. 24 "[Ms long as the trial court's ruling was at least within the zone of
reasonable disagreement, the appellate court will not intercede." 25 Trial courts are
afforded wide latitude in their decisions to admit or exclude evidence. 26
B. Under Court of Criminal Appeals Precedent, the Court Did Not Err in
Admitting the Narcotics
Appellant's attorney objected to the introduction of exhibit 90 and 90A, which
were a 12 by 15 yellow envelope along with the scope bottle containing the narcotics. 27
The exhibits were admitted during the testimony of Laurie Raesz, a Forensic Chemist at
the Texas Department of Public Safety in Houston. 28 Appellant's Counsel argued that the
22 Id.
23 Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.—Waco 1994, pet. Ref d) (quoting McCoy, 486 U.S. at 436).
24 See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001).
25 Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
26 Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).
27 Reporter's Rec. Vol. V, at 142.
28 Reporter's Rec. Vol. V, at 143.
8
exhibits were inadmissible because the State did not prove the first step in the chain of
custody by bringing whoever secured the evidence and initialed it securing it within the
chain of custody. 29
Texas Rule of Evidence 901(a) provides that the requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims."30 It is well
settled that minor theoretical breaches in the chain of custody go to the weight rather than
the admissibility of the evidence. 31 Proof of the beginning and end of the chain will
support admission of the evidence barring any showing of tampering or alteration. 32
Officer Melchor admitted that she did not mark the narcotics or place them in an
33 Those facts would not render the exhibits inadmissible absent a showing
evidence bag.
by appellant or tampering or alteration. 34 Officer Melchor testified that she was able to
identify the Scope bottle and its contents as those recovered from Appellant on the day in
question. 35 Thus, the Court acted correctly in admitting the evidence over the objection
of counsel.
29 Reporter's Rec. Vol. V, at 129.
30 See Tex R. Evid. 901(a).
31 DeLeon V. State, 505 S.W.2d 288, 289 (Tex. Crim. App. 1974).
32 Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 112 L. Ed. 2d 333, 111 S.
Ct. 371 (1990).
33 Reporter's Rec. Vol. V, at 117.
34 See Stoker, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 112 L. Ed. 2d 333, 111 S. Ct.
371 (1990).
35
Reporter's Rec. Vol. V, at 115.
9
II. There Was No Error in the Trial Court Ordering the Appellant to Provide
Fingerprints in Open Court
The Court instructed the State to have their investigator fingerprint the Appellant
in open court in order to have comparisons for penitentiary packets. 36 Appellant's
attorney objected due to lack of notice being given by the State. 37 The Court on its own
motion ordered that the investigator proceed with the fingerprinting and overruled the
objection of counsel. 38
To establish that a defendant has been convicted of a prior offense, the State must
provide beyond a reasonable doubt that (1) a prior conviction exists, and (2) the
defendant is linked to that conviction. 39 The State may prove both of these elements in
several ways, including (1) the defendant's admission or stipulation, (2) testimony by a
person who was present when the person was convicted of the specified crime and can
identify the defendant as that person, or (3) documentary proof (such as a judgment) that
contains sufficient information to establish both the existence of a prior conviction and
the defendant's identity as the person convicted. 40
The taking of fingerprints for identification purposes is not a violation of the
accused's rights under the Fifth Amendment. 41 "[T]he most common method of proving
36 Reporter's Rec. Vol. VI, at 64.
37 Reporter's Rec. Vol. V, at 64.
38 Reporter's Rec. Vol. VI, at 65.
39 Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
49 Id. at 921-22.
41 Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966); Tea v. State, 453 S.
W. 2d 179, 181 (Tex. Crim. App. 1970).
10
identity is by fingerprint comparison. This method usually entails taking the fingerprints
of the defendant during the trial." 42
CONCLUSION AND PRAYER
Appellant prays that this Court conduct a "full examination of all the proceedings
to decide whether the case is wholly frivolous." 43 Should the Court find that the case is
wholly frivolous, Appellant's counsel prays that he be allowed to withdraw as counse1. 44
Respectfully Submitted,
Law Office of Austin D. Black
215 Simonton Street
Conroe, Texas 77301
(936) 524-3124 Telephone
(936) 756-3539 Facsimile
Email: adb@yourconroeattorney.com
Austin D. Black
State Bar No. 24050018
Attorney for Appellant
LASHONDA DEON JONES
42 DIX & DAWSON, §38.148.
43 Penson v. Ohio, 488 U.S. 75, 80 (1988), Bledsoe, 178 S.W.3d at 827-28.
44 Anders, 386 U.S. at 744.
11
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Appellant's Brief was
delivered vis e-file to the Montgomery County District Attorney's Office, at 207 W.
Phillips, Conroe, Texas 77301, on the September 28, 2015.
0,e---73-6,71
Austin D. Black
12