Lashonda Deon Jones v. State ( 2015 )


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  •                                                                 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