Evens, Bobby Joe ( 2015 )

NO: PD-1345-15 i3HS-(S
IN THE
COURT OF CRIMINAL APPEALS
ORIGINAL
BOBBY JOE EVENS
APPELLANT/petitioner
VS.
THE STATE OF TEXAS
APPELLEE/RESPONSANT
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
RECEIVED IN
COURT OF CRIMINAL APPEALS
, IN APPEAL NO. 06-15-00079-CR
DEC 2 2 2015
FROM THE
COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
AT TEXARKANA
FILED IN
COURT OF -CRIMINALAPPEALS •
...^ ^ BOBBY JOE EVRNS
'••'<-' '•— #1995944
POLUNSKY UNIT
, KZJ AC03ta. Clerk 3872 F.M.350 SOUTH
LIVINGSTON,TEXAS 77351
TABLE OF CONTENTS.
INDEX OF AUTHORITIES
STATEMENT REGUARDING ORAL ARGUMENT_
s
STATEMENT OF PROCEDURAL HISTORY
GROUNDS FOR REVIEW
GROUNDS FOR REVIEW
(1) INSUFFICIENCY OF EVIDENCE IN REFERENCE TO 1,030 DOLLARS IN
CURRENCY APPELLANT EVANS POSSESSED ON NOV 09,2010.(A) (B) (C) (D)
(2) INSUFFICIENT EVIDENCE (GUILT BY ASSOCIATION) WHETHER THE
DISTRICT COURT ERROR BY PROVING APPELLANT'S GUILT BY SHOWING HE
ASSOCITATED WITH A GUILTY PERSON ON NOV 09,2010 (A) (B) (C)
(3) INSUFFICIENT EVIDENCE IN REFERENCE TO 5.63 GRAMS OF CRACK
COCAINE BEING A INSUFFICIENT AMOUNT:.IN WEIGHT TO SUPPORT A MANUFACTURE
DELIVERY CHARGE
(4) WHETHER THE DISTRICT COURT ERROR BY NOT GIVING A UNREQUESTED
ART.38.14, 38.075, OR 38.17 INSTRUCTION TO THE JURY (A) (B)
(5) WHETHER THE SIXTH DISTRICT COURT OF APPEALS AT TEXARKANA ERROR
IN EVULATING THE SUFFICIENCY OF EVIDENCE (A-I)
ARGUMENT NUMBER ONE (A) (B) (C) (D) ft- ~L^ ) fir %" ^J Lrty-lP) UT^J
ARGUMENT NUMBER TWO (A) (B) (C) A^lf)\ P> ~JD ) (L-~IO-ll\
ARGUMENT NUMBER THREE J\
ARGUMENT NUMBER FOUR (A) (B)
ARGUMENT NUMBER FIVE (A-l) \l±— \ 5
PRAYER FOR RELIEF "[&
CERTIFICATE OF SERVICE J^
APPENDIX Mficbdi ~\~\s>
3l
INDEX OF AUTHORITIES
CASES
ALMANZA V. STATE 686S.W.2d 157,171 (Tex Critn App 1981)(Op.on REH'G)
SUPERSEDED ON OTHER GROUNDS BY RULE AS STATED IN RODRIGUEZ V.
STATE 758 S.W.2d 787, 788 (Tex Crim App(l988) /£,- j[3
UNITED STATES V. ANDERSON 933 F.2d 1261, 1267-68(5th Cir.1991) t "7
QUOTING WILLIAMS V. NEW YORK 337 U.S.241, 69 S.CT.1079,1083 ~i
BRITTON V.STATE 793 S.W.2d AT 768-769 COURT OF APPEALS OF TEXAS
FORT WORTH TX (AUG.15.1990) "7
BADILLO V. STATE 963 S.W.2d 854,855(Tex App SAN ANTONIO 1998,
PET REF'd /_£,
•f BROOKS V. STATE 323 S.W.3d 893 (2010) TEXAS CRIMINAL APPEAL LEXIS
1240 NO:P.D.0210-09 OCT 06(2010 delivered pg.5) //
BROOKS V. STATE 10-07-00309-cr 2008 TEX APP 7364 at 11 (TEX APP
WACO DELIVERED OCT 1st (2008) //
CHAPMAN V. STATE 470 S.W.2d 656, 660 (TEX CRIM APP (1971) /£_
CLEWIS V. STATE 922 S.W.2d at 149 jl
UNITED STATES V. FORREST 620 F.2d 446, 451 (5th Cir 1980) iq
UNITED STATES V. HENDERSON 524 F.2d 489 (5th Cir 1975) .i
,_. JOHNSON V. STATE 23 S.W.3d 1,13 Tex Crim App(2000) if
KNIGHT V. STATE NO: 10-01-176-CR COURT OF CRIMINAL APPEALS OF
TEXAS-WACO, NOV 06 2002 /^L
„ UNITED STATES V. LABARBERA 581 F.2d 107, 109(5th Cir 1978 g
- UNITED STATES V.LIV 960 F.2d 499, 552,552 (5th Cir) US-113 S.CT.418,
121 L.E.D.2d 341 (1992 y
UNITED STATES V. LONGORIA 569 F.2d 422 (5th Cir 1978) /_2
MANSON V. STATE 416 S.W.3d 720,743 N.17 (Tex App HOUSTON) (14th
DISTRICT) iJjL,
3
UNITED STATES V.McAFFEE 8 F.3d 1010,1017 (5th Cir 1993 7
UNITED STATES V MARTINEZ 486 F.2d 15 (5th Cir 1973) //
STATE V CHRISTOPHER ALLEN PHILLIPS 436 S.W. 3d (1014) fJL~toL
Tex App.Lexis 5316 NO: 10-12-00164-CR (May 15th 2014) //__
Tex Code Crim Proc Ann Art. 38.075 (Supp.2013 jl
SANDERS V STATE, 817 S.W.2d 688,692 (tex Crim App 1991) ,3
_________ 858 S.W.3d 676,679,681 (Tex App Corpus Ch_isti(2011)_/#.
SCHNIDIT V STATE 357 S.W.3d 845,850-851 (Tex App-Eastland (2012)_/£.
UNITED STATES V SINGLETERRY 646 F.2d 1014,1018-20 (5th Cir 1981)_-~
UNITED STATES V REGELIO PARADA TALAMANTES 32 F.3d 168-171., \q
UNITED STATES COURT OF APPEALS (fifth Cir AUG 31st 1994 y
TIBBS V FLORIDA 457 US 31,42, 102 S.Ct..2211-72 L.Ed 652(1982) ^
WATSON V STANDARD 204 S.W. 3d~at 477_ _ i\
WAIKINS V STATE 333 S.W.3d 771,779,787, (Tex App WACO (2010) jn
WILLIAMS V NEW YORK 337 U.S. 241, 69 S.Ct. 1079,1083, 93 L.E.D.
1337 (1994)
7
¥
PD-1345-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
BOBBY JOE EVENS
APPELLANT/PETITIONER
VS.
THE STATE OF TEXAS
APPELLEE/RESPONDANT
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Appellant/Petitioner Respectfully Submits This Petition for Discretionary
Review And Moves This Honorable Court Grant Review Of This Cause And Offers
The following In Support Thereof:
STATEMENT RFGUARDING ORAL ARGUMENT
T Appellant/Petitioner request oral argument in this case because such argument
may assist the Court in applying the facts to the issues raised. It is suggested
that oral argument may help simplify the facts and clarify the issues.
STATEMENT OF THE CASE
_This is an appeal from the judgement and sentences in a criminal case in the
196th District Court in Hunt County,Texas. The Appellant was indicted on May 27,
2011 for possession of a controlled substance with the intent to deliver, namely:
cocaine, four grams or more but less than two hundred grams. After entering a plea
of not guilty, Appellant elected to be tried and sentenced by a jury. On April
5"
09,2015 the jury found Appellant guilty and made a finding of true to two or
more enhancements. The jury assessed punishment at life in the Texas Department
of Criminal Justice-Institutional Division. Appellant filed a notice of appeal
on May 05,2015.
STATEMENT OF PROCEDURAL HISTORY
In cause number 06-15-00079-CR the Appellant/Petitioner was charged with the
offense of possesion of a controlled substance with intent to deliver namely:
cocaine, four grams or more but less than two hundred grams. The Appellant/
Petitioner was convicted of such offense andfound guilty on April 09,2015 and
appealed the convictionon May 05,2015. On September 18,2015 the Court of Appeals
Sixth Appeallate District, State of Texas at Texarkana, affirmed the conviction.
No motion for rehearing was filed. On jjyL "" >H "*otQlff this Petition for
Discretionary Review was timely forwarded to the Court of Criminal Appeals for
filing pursuantto Rule 9.2(b), Texas Rules of Appellate Procedure.
GROUNDS FOR REVIEW
(1) Insufficiency of evidence in referency to 1,030 dollars in currency Appellant
Evfcns possessed on Nov.09,2010.
(2) Insufficient evidence (guilt by association) whether the District court
error by proving Appellants guilt by showing he associated with a guilty person
on Nov.09,2010.
(3) Insufficient evidence in reference to 5.63 grams of crack cocaine being a
insufficient amount in weight to support a manufacture delivery charge.
(4) Whether the District Court error by not giving a unrequested Art.38.14
38.075 or 38.17 instruction to the jury.
(5) Whether the Sixth District Court of Appeals at Texarkana
error in evulating the sufficisncy of evidence A-I
ARGUMENT # 1 A
INSUFFICIENCY OF EVIDENCE
Whether the District Court error by admiting evidence against
Appellant Evgns that 1,030 in currency that was in Appellant Evgjis
possession was related to drug money. Appellant Evgns relying on
UNITED STATES V. REGELI0 PARADA TALAMANTES 32 F.3d 168-171 UNITED
STATES COURT OF APPEALS (fifth circuit, aug.31st 1994)
Apne.ll^nt Ev^psoor.tends that no reasonable inferences could be
U
drawn from this evidence by a reasonable juror. The evidence is
not relevent, moreover the admission of such evidence was improper
and highly prejudical because the State used it to try and establish
Evfltas guilt by showing he associated with a guilty person. See UNITED
STATES V.SINGLETERRY 646,F.2d 1014, 1018-20 (5th Cir.1981) Cert
denied 451 U.S. 1021, 103 S.Ct.387,74 L.E.D.2d 518(1992) Because guilt
by association is typically highly prejudical. it should be excluded.
See UNITED STATES V McAFFEE 8 F.3d 1010,1017 (5th Cir.l993)(2)
we will reverse a District Court ruling on the admissibility of
evidence only on a finding of a abuse of discretion. UNITED STATES
V.LIV 960 F.2d 499,552 (5th Cir) Cert denied US_113_S .Ct.418,121
L.E.D.2d 341(1992) Evidence in acriminal trial must be strictly
relevent to the particular offense charged. UNITED STATES V ANDERSON
933 F.2d 1261,1267-68(5th Cir 1991) Quoting WILLIAMS V NEW YORK 337
U.S. 241, 69 S.Cf.1079,1083,93 L.E.D 1337 (1994) See SINGLETERRY 646
F.2d atl014. In Singleterry this Court held an attempt to show guilt
by association was plain error. Id at 1018.
Appellant Ev&ns relying on BRITTON V STATE 793-794 S.W.2d at 768-
769 Court of Appeals of Texas, Fourt Worth, Aug 15th 1990 1, G.P.D.
officer Lt.Cole did not have sufficient probable cause to arrest
Appellant on Nov 09 2010 for a expired inspection sticker. After
warrantless search of Appellants vehicle discovered no contraband,
therefore the incident t_ arrest was unlawfull [U.S.C.A. Const Amend.
4; Vernons Ann.Texas Civ.St.671d 51.(2.) To prove possession of
controlled substance State must show that defendant was aware that
his conduct or circumstances surrounding his conduct constituted
possession of a controlled substance [3] State is required to prove
affirmative links between accused and custody and control of contraband
in order to prove possession. [4] Mere presence at a place where
controlled substance is being used or possessed is insufficient to
establish joint possession.
(corroboration) Futhermore when the State alleges manufacture
delivery or possession with the intent to deliver a controlled
substance proof of an offer to sell must be corroborated by a person
other then the offeree or by evidence other than a statement of the
offeree.(TEX HEALTH AND SAFETY CODE Ann.§481.183(a)(VERNON 1992)
7
The State did not establish sufficient affirmative links between
defendant and contraband found.in the vehicle the States witness Smith
was riding in. Altho the State attempted to establish at least joint
custody and control through officers testimony that Appellant met
with Smith at a Nat 24 convient store on Nov 9,th 2010. Although
meeting with Mr Smith who was later found,to be in possession of
contraband is not enough relible trustworthy evidence that Appellant
actually ever possessed the contraband found in the vehicle Smith
was riding in. Thus that contraband could have belong to anyone in
that vehicle. Appellant contends Smith actually possessed the contraband
prior to meeting Appellant. Futhermore theres no sufficient evidence
to support the States case that Appellant was even aware of anyone
being in possession of contraband and theres no factual evidence
that Appellant actually possessed, manufactured or delivered the
contraband to Smith, therefore that leaves the States case devoid
of where a conviction could rest on.
(Pretextual Arrest) Is one made for the purpose of elicting testimony
or making search incident to that arrest. On Nov 9th 2010 Lt. Cole
of G.P.D. stopped Appellant, searched Appellant, and unlawfully and
warrantlessly authorized K-9 unit to search Appellants truck, and
discovered no contraband then take Appellant into custody only for
a inspired inspection sticker and thus confiscate 1,030 in currency
from Appellant unlawfullly thats considered by law a (PRETEXTUAL
ARREST) and later in Appellants trial the State taint the jury with
evidence confiscated from this illegal pretextual arrest.
ARGUMENT # 1 B
Whether the Dis.trict Court error in reference to the introduction
of evidence being one thousand dollars in currency confiscated from
Evens on Nov 09 2010 while only being arrested for a traffic violation
being a expired inspection sticker RR Vol 5 of 10 trial on merits pg 26
Appellant contends that this was illegal and a highly prejudical
attempt ;to taint defendants character through guilt by association
UNITED STATES V R0M0 699 F.2d 885(5th Cir 1992) Quotting UNITED STATES
V LABARABERA, 581 F.2d 107, 109 (5th Cir 1978)
Appellant Evens contends the States witness Smith entered his truck
so that he could retrieve his step daughters car keys. Moreover while
Appellant waited on Smith to arrive Appellant Evgns contends he was
counting and seperating anemurious amount of tweenty dollar bills
$
inorder to pay three seperate car notes. Appellant contends Robert
Lewis Smith Jr. notice in plain sight that Appellant Evens was in
possession of all of this currency, therefore it's no suprise that
Smith alledges he gave Appellant Ev^is ten tweenty dollar bills. RR
Vol 5 of 10 trial on merits pg 75
Lt. Cole of the G.P.D. states the currency Evens had was organized
in a certain order RR Vol 5 of 10 trial on merits pg 132-142
Appellant Evgns contends the currency he possessed consisted of
forty six tweenty dollar bills, one hundred dollar bill and one ten
dollar bill in visible sight of Smith. RR Vol 10 exhibits volume of
currency photos 23-26
Therefore Smith need not have ESP to alledge he gave Appellant
ten tweenty dollar bills while prosecutor tries to taint jury. RR
Vol 5 of 10 trial on merits pg 169
ARGUEMENT #1 C
Appellant Evens contends the evidence adduced at trial v/as insufficient
to support his conviction because [l] the evidence fails to show
Evens ever possessed, manufactured or delivered drugs to Smith.
Appellant argues although his actions and statements viewed in light
most favorable to the (government) only arguably show he was conscious
of some prior illegality. Moreover without proof that Eviris actually
possessed, manufactured or delivered drugs to Smith Appellant Evgns
could not properly be convicted of manufacture delivery.
Appellant contends theres no reliable proof that he ever manufactured
any drugs (citing) just because he had prior knowledge of how it v/as
done dosn't infer that he actually ever personally manufactured any •
drugs.RR Volume 10 of 10 reporters record Volume, pg 7-12 also see
states exhibits 86, pg 7-12. Appellant contends someone else always
manufactured the drugs. RR Reporters records volume 10 of 10 pg 10-
12 also see states exhibits 86, 10-12. Appellant contends theres no
reliable evidence to support a guilty verdict, and that he v/as found
guilty only by his association v/ith Smith that day on (Nov, 09,2010)
Appellant Evtns objected to the introduction of evidence reguarding
the revelancy of 1,030 in currency RR Index Vol 5 trial on merits
pg 134. The District Court overruled his objection. Appellant contends
theres no reliable proof that any of the 1,030 in currency that was
in Evens possession was connected to Smith in any way.
9
Moreover to.saddle Evens defense with the transgression of Smith
being in possession of drugs place a Sisyphean burden on this
search for the truth effectively fortelling the result. Futhermore
the asmission of such highly prejudical evidence in absence of
any curative instruction amounts to reverseable error.
ARGUEMENT # 1 D
Whether the District Court error by over ruling defendants Evens
objection in reference to insufficient evidence :the State introduced
over defense objectionreguarding revelancy of 1,030 in currency
RR INDEX VOL 5 TRIAL ON MERITS pg 134 The district court over ruled
the defendants objection, Appellant Evens contends theres no reliable
proof that the 1,030 in currency Evens was.in possession of was
connected to Smith in any way futhermore the admission of such highly
prejudical evidence in absence of any curative instruction amounts
to reverseable error.
VJhether the District Court error by showig Appellant Evens associated
with unsavory characters, Arguement #2 A
Appellant Evens contends a defendants guilt may not be proven by
showing he associates with unsavory characters. The fact that the
defendant associated with or in the company of a criminal does not
support thginference that the person is a criminal or shares the bad
conduct or relatives or friends is error: Questions relating to
convictions of associates or relatives a£e not admissable under Fed.
R.Evid 404(a) provides (a) character evidence: Fed.R.Evid 609
(a) provides thai for the purpose of attacking the credibilHyoof-a
witness evidence that he has been convicted of a crime shall be
admitted (if) eletced from him or establish by police record during
cross examination. But only if the crime was punishable by death or
imprisonment in excess of one vear under the law v/hich he was convicted
and the court determines that'/he probative value of admitting this
evidence outweighs it's prejudical effect to the defendant or (2)
involved in dishonesty or false statements of punishment.
ARGUEMENT #2 B
VJhether the District Court error by admitting insufficient evidence.
Appellant Evens contends the introduction of evidence generally
evidence of a persons character or a trait of his character is not
admissable for the purpose of proving that he acted in conformity
therewith on a paticular occasion except (l) charaster of the accused
evidence of a pertinent trait of his character offered by an accused
or by the prosecution to rebut the same
ARGUEMENT #2 C
Whether the District Court error by proving Appellant Evens guilt
by his association with a guilty person.
The long established rule that a defendants guilt may not be proven
by showing he associates .with unsavory characters. In UNITED STATES
V FORREST,620 F2d 446,451(5th Cir 1980) we stated: that one is married
to, associates with or in the company of a criminal does not support
the inference that that person is a criminal or shares the criminal
guilty knowledge." See UNNITED STATES V LONGORIA, 569 F.2d 422(5th
Cirl978)
UNITED STATES V HENDERSON, %@$ F.2d 489(5th Cir 1975) UNITED STATES
V MARTINEZ S*g F.2d 15(5th Cir 1973) we have held that admission
of evidence of bad conduct of relatives or friends is error.
ARGUEMENT #3
Insufficiency of Evidence
(VJhether) the District Court error by admitting over defense
objection 5.63 grams of crack cocaine into evidence in support of
a manufacture delivery charge.
Appellant Evens relying on Kelvin Kianta Brooks v State, Texas
Court of Criminal Appeals of Texas 323 S.W.3d 893(2010) Texas Criminal
App. Lexis 1240 no:P.D.0210^09 Oct.06(2010) delivered pg.(5) Appellant
Evens contends 5.63 grams is insufficient evidence to support a
manufacture delivery charge because this amount isalso consistent
with personal use, additional evidence is required. See Brooks v.
State 10-07-00309 CR 2008 Texas App Lexis 7364 at ll(Tex App Waco
delivered Oct 1st 2008 (memorand opinion not designated for publication
See Brooks v State 2008 Tex App lexis 7364 at *12 *13 pg.(7)*****
See Tibbs v. flordia 457oU.S.31,42,102 S.Ct.2211 72 I.Ed 652(1982)
(internal quotes omitted describing Appellale reversals of conviction
based on evidentary(weight) Watson standard 204 S.W.3d at 477/makes
the treviewiug court a thirteenth jurtor viewing the credibility
of weight testimony. See Johnson v State 23 S.W. 3rd l,13(Tex Crim
App 2000) See Clewis v State 922 S.W.2d at 149 citing Tibbs v State
457 U.S.at 42 L>:
Appellant Evens contends based in part on Smith- on admission that
ha is a excessive drug user this amount Smith possessed is consistant
with personal use that Smith actually possessed prior to meeting
with Appellant.RR VOL 5 of 10 trial on merits pg 82
ARGUEMENT # 4-A
Whether the district court error by not giving a un.cequested
article 33.14,38-075, oc 38.17 instructionto the jury.
Appallan-f* Evens contends he suffofed egregious harm due to the
fact the States key witness, Robert Smith Jr. was a jailhouse
witness, jailhouse informant, or accomplish witness and the State
relied totally on his testimony to support a conviction. There
v/as no substantial evidence to support a guilty verdict and due
to the fact Smith testimony was admitted without any curative
instruction, this caused Appellant Evens to suffer (egregious
harm). Smith made confessions andadmissions to the alledged crime
without any curativeinstruction to the jury. Appellant Evens contend
this curative instruction falls under the rule of law as accomplish
witness testimony argued on direct appeal to the court of criminal
appeals sixth appellate district of Texas at Texarkana. Appellant
Evens is relying on the STATE VJCHRISTOPHER ALLEN PHILLIPS COURT OF
CRIMINAL APPPELAS OF TEXAS,TENTH DISTRICT WACO 436 S.W.3d:2014 TEX
APP.LEXIS 5316 No: 10-12-00164-CR (MAY 2014) TEXAS CODE CRIM.PROC.
Ann.ART38.075 (SUPP.2013)was enacted in recognition that incarcerated
individuals have an incentive to provide information against other
incarcerated individuals and that is therefore imprudent to convict
a person based on an incarcerated jailhouse witness, jailhouse
informant or accomplish witness statement, all three are characterized
„ . fi ; V. _
//
the same as one based on their statement providing information
related to a crime only declares the crime was committed. Without
additional evidence to substantiate the informants claim.
Appellant contends under this rule of law requiring curative
instruction, the jailhouse witness, jailhouse informant witness
or accomplish witness testimony must be disreguarded to determine
if there is any evidence that tends to connect the defendant to
the crime. CHAPMAN V STATE 470 S.W.2d 656, 660(Tex Crim App 1971)
See also EX PARTE ZEPADA 819 S.W.2d 874,876(Tex Crirh App 1991)
Absent jailhouse witness, jailhouse informant v/itness.or accomplish
witness, evidence that tendsto connect defendant to the crime, the
jailhouse witness, jailhouse informant or accomplish witness testimony
will not supportthe conviction and the defendant must be acquitted.
SEE TEX CODE OF CRIMINAL PROC ART 38.17(WEST 2004) Badillo v state
963 S.W.2d 854,855 (Tex App San Antonio)1998,Pet Ref'd)6.
Appellant Evens contends this case conflicts with theSixth Court of
Appeals ruling on case No: 06-15-00079-CR, on appeal from the 196th
district court, Hunt CountyTexas., trial court No:27388. The decision
conflictswith THE , STATE OF TEXAS V CHRISTOPHER ALLEN PHILLIPS
COURT OF APPEALS OF TEXAS, TENTH DISTRICT WAC0,436S.W.3d 333;2014
LEXIS,5316 No: 10-12-00164-Cr May 15,2014 Opinion delivered May
15,2014. Opinion filed in this case considers a jailhouse witness
jailhouse informant or accomplish witness. All three are in the same
catagory by rule of lav/ and requires curative instruction in
reference to (l) Tex CodeCrim.Proc.Ann art.38.14(WEST 2004) (2)
jailhouse informant testimony, Tex Code Crim. Proc Art 38.14 (WEST)
2004) See brooks v state 357 S.W3d 777,778 (Tex App Houston(l4th
Dist) Pet Kefd; {3) See Manson v State 416 S.W.3d 720,743 N.17
(Tex App Houston (14th Dist) Pet Ref'd) SCHNIDT V STATE 557 S.W.3d
845,850-851 (Tex App Eastland 2012 Pet Ref'd) BROOKS V STATE 7o%&
S.W.3d 777-781(Tex App Houston 14th Dist)2011; Pet Ref'd) RUIZ V
STATE,358 S.W.3d 676,679-681(Tex App Corpus Christi; 2011,no pet)
WAXKINS V STATE 333 S.W.3d 771,778-779(Tex App WACO 2010,Pet Ref'd)
ARGUEMENT #4-B
Appellant Evens relies on Knight v State No: 10-01-176-Cr Court of
Criminal Appeals of Texas Waco Nov 06,2002 Appellant Evens contends
that the trial court committed egregious harm by notgiving an
unrequested Art 38.14,38.17,or 38.075 instruction to the jury in
the present case appellant did notand could not have gotten a fair
trial without a proper jury instruction as to accomplish v/itness,
jailhouse witness or jailhouse informant testimony of Robert Lewis
Smith Jr. (RR Vol.5,81; 14-25) (RR Vol 5,75; 15-23) Mr. Smith
testimony is inherently suspicious and is untrustv/orthy enough that
a conviction should not rest soly on such testimony. The Texas
Legislature raemorslized this truth through Article 38.14 Art 38.17,
and Art 38.075 of the Code of Criminal procedures. A conviction
cannot stand upon the testimony of an accomplish witnass, jailhouse
witness or jailhouse informant witnessunless corrborated by other
evidence tending to connect the defendant with the offense committed
and the corrobration is not sufficient if ti merely shows the
commission of the offense. Since no proper objection v/as made at
trial defendant claim the error v/as fundamental and so egregious
and created such harm that he has not had a fair and impartial
trial. In short egregious harm;"ALMANZA V STATE,686 S.W.3d 157,171
15-
.Tex Crim App 1981) (ot on reh'g) SuDereeded on other grounds by
Rule as stated in RODRIGUEZ V STATE'758 S.W.2d 787,738 (Tex €tXM
App 1988) Specifically in the casa of a necessary Art 38.14.
Art.38-1.7 nr fcf&-_}$>.&35 infraction that was omitted without
objection at trial, egregious harm occurs if jurors v/ould have
found the corroboration evidence so unconvincing in fact as to
render the States over all case for conviction clearly and significantly
less persuasive without the accomplish witness testimony. Sanders
v State,817 S.W.2d 688, 692 (Tex Crim App 1991) The jury in this
cases was asked to determine the guilt or innocence of the Appellant
based mostly off the testimony of Mr. Smith, but with no instruction
to the jury concerning the jailhouse witness testimony, jailhouse
informant testimony oraccoraplish witness testimony. This caused
(EGREGIOUS HARM) to the appellant. The States none jailhouse witness
jailhouse informant or accomplished witness evidence is weak on it's
own and absent the jailhouse witness, jailhouse informant or the
accomplish witness testimony would have made tha States case
significantly less persuasive. The State presented evidence that
appellant met with Robert Lewis Smith Jr. at the Nat 24 (RR Vol.
5, 37: 3-38:16) The appellant had 1030 dollars in cash on his person
before and after meeting with Mr. Smith(RR Vol 5.135:2-13) And that
Robert Lewis Smith Jr. had crack cocaine in his vehicle before
and after meeting with the appellant. The State also offered prior
testimony of the appellant through (Sx 22) admitting that he was
dealing crack cocaine during that time period in Hunt County. This
evidence without the jailhouse witness, jailhouse informant or
accomplissh witness testimony leaves the States case devoid of avy
evidence upon which a conviction could rest. Meeting Mr Smith at a
gas station and later finding drugs in a vehicle he was riding
in and-afterwards he later admitted the drugs belong to him dosnyt
immediatelly infer that the drugs came from the appellant. In fact
the defense presented the ony reason for the meeting betv/een Mr.
Smith and the appellant in cross-examinationof Mr. Smith when Mr.
Smith was asked whether it v/as true that the appellant met him that
day onlv to pick up his step daughters house keys. (RR Vol.5.84:
23-85:3) Also having 1030 dollars in cash on him after meeting
with Mr Smith does not infer that the appellant sold Mr. Smith the
crack cocaine. Any inference that the money must be from the sale
of drugs is down played by the fact that the cost of drugs in Smith
possession v/as only 200.00 (RR Vol.5, 42:11-22) Finally appellant
testifying in a Federal trial that he sold cocaine at some point
and time does not tend, to connect the appellant as the dealer from
v/hom Mr Smith received his cocaine, if it did then one might infer
that the appellant v/as the dealer for every parson he came into
contact with who was in possession of such a drug. Something a
reasonable juror would not do. T&us (EGREGIOUS HARM) occured to the
appellant in this case because the corroboration evidence was of
such a nature that without the jailhouse witness, jailhouse informant
or accomplish witness testimony the States case against appellant
was significantly less persuasi-ve.
Appellant contends based on Smith ov/n admission to buying drugs
to deliver them to another County, Smith could have been charged with
the same crime as appellant.(RR Vol 5 of 10 trial on merits pg 79
30, 87,89,90,91,93,94,95,96, Therefore Smith should have been considered
a accomplish v/itness, jailhouse witness, or a jailhouse informant
as set out by rule of law. all three are characterized as the same.
Smith alledges he was in a drug ditrabution relationship with appellant
for over three years RR.Vol 5 of 10 trial on merits pg,90,91,92,93; ?
13
Also Mr Smith prior convictions indicates two convictions fov
/fpnufacture delivery. Another for possession and also a federal
conviction for conspiracy to distribute over 200 kilo of cocaine
base resulting from tha same charge as appellants federal charge
whereas Asst. District Attorney Keli M.. Aikin states all of this
occured during the same conspiracy time frame RR Vol 5 of 10 "rial
on merits pg.79,80;81,86.87,90,91,92,93,94 and (Sx .22)
Appellant argues it's unjust to convict an individual based solely
off a officers training and experience based on the fact he t-houpht
a drug transaction occurred. Dect. Warren Mitchell stated he and\wo
other officers were in a vehicle sitting approximately fifty yards
away across the street looking at appellant Evens dark lemo tented
windows truck inwitch you couldn't,see in at,five yards away, assuming
a drug transaction transpired. It's a gross miscarrage of justice
to convict an individual based solely on what two or three officers
assume v/as happening. RR: reporters records Vol 5 of 10 trial on
merits Pg 38,52,57,60,61,64,65,;
pact. Jason Mitten v/ho was sitting in the same vehicle with Dect.
Mitchell and Det Vic Roberts stated all three individuals were sitting
approximately 50 yards across the street looking at a dark lemo
tented windows truck assuming a drug transaction was happening. Theres
£S fri fblf ?~oof a dru§ transaction was taking placeonly assumption.
RR Vol 5 of 10 trial on merits pg,115,116,117,119,120,121
Asst. District Attorney Keli M.Aikin states all of this implicating
the-drug transaction occured in front of three cops indicating to the
jury three cops actually witness appellant Evens selling drugs to
Mr Smithinwhich isn't true. This was a bold attempt to taint the
jury RR.Vol 5 of 10 trial on merits pg 16.8.
Defense counsel Chris Castanon indicates theres no reliable evidence
to support a guilty verdict. RR.Vol 5 of 10 trial on merits pg 165
lo6,167. Appellant Evens contends he did not have a fair trial and
the evidence presented at trial was insufficient to support a suiltv
verdict. & y
ARGUEMENT #5
Whether the Sixth Court of appeals error in avulating the sufficiency
of evidence.
(A)^Appellant Evens contends his first second, third, fourt and
fifth grounds and arguements are consistant and the States evidence
is legally and factually insufficient to sustain his conviction
because the State failed to present evidence to corroborate v/ith
Robert Lev/is Smith Jr. testimony reguarding a offer to sell him cocaine.
(B) The State failed to present evidence that appellant ever actually
v/as in possession of coca_4fe.
(C) Tha State failed to prove that appellant ever actually manufactured
or delivered the drugs in question.
(D) In reguards to the 1030 dollars in currency that was in aopallants
possession on Nov 09th 2010 none of those bills were marked, therefore
to randomally pick out ten tweenty dollar bills out of 46 twee>nty
dollar bills definitely ±5 not sufficient corroboration.
#(E) Futhermore 5.63 grams of crack cocaine is a insufficient amount
in weight to support a manufacture delivery charge.
'9
(F) Appellant contends he was found guilty only because he associated
with a guilty parson on Nov 09th 2010 and there was no sufficient
evidence to support a guilty verdict.
(G) There was no audio, vedio, marked money, or wire taps introduced
to support States case.
(H) The State relied solely on Robert Lewis Smith Jr. testimony to
support their case and a conviction,
(i) Futhermore the jury received no curative instruction without
a Art 38.14, 38.075 or 38.17 Appellant did not and could ahva received
a fair trial.
CONCLUSION AND PRAYER FOR RELIEF
Wherefore premises considered, Appellant Respectfully prays that
his judgment in the above entitled and Numbered caused be reversed
and rendered. Appellant futher prays for all othar lawful relief
to which he may be entitled, at lav/ or In equity.
RESPEt
B03BY JOE EVENJ
PRO SE APPELLANT
POLUNSKY UNIY.
3872 P.M.350 SOUTH
LIVING SY0N,T EXAS 7 73 51
CERTIFICATE OF SERVICE
The undersigned pro se appellant/petitioner hereby certifies that
a true and correct copy of the foregoing petition for discretionary
review has been mailed U.S. mailpostage prepaid,to the Court of
Criminal Appeals in Austin Texas care of Mr. Able Acosta, clerk of
Criminal Appeals, P.O.Box 12308 Auatin Tx 78711 on tis__|___day of
December,2015
is-
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00079-CR
BOBBY JOE EVENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court No. 27,388
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Chief Justice Morriss
OPINION
After sitting in Bobby Joe Evens' truck for less than two minutes,1 Robert Lewis Smith,
Jr., exited Evens' truck and returned to the adjacent sedan in which, scant minutes before, Smith
had arrived on the Greenville, Texas, convenience store parking lot. The nearby Greenville, Texas,
policeofficers who observed this event believeda drug sale hadjust taken place.2 Evens departed
from the lot in his truck, but was immediately stopped by one officer. Smith, the sedan, and the
sedan's driver were detained on the spot by another. A search of Evens' truck turned up $ 1,030.00
in cash, including at least $200.00 in twenty-dollar bills, while the search of Smith's sedan turned
up crack cocaine.3
Evens was tried by a jury for possession of more than four grams but less than 200 grams
of crack cocaine, with intent to deliver.
'Warren Mitchell, an investigator with the Greenville Police Department, testified that, when he saw Evens driving
his Ford truck, Mitchell followed him to the NAT 24 gas station and convenience store. Evens parked close to the
corner of the store, but did not get gas, get out of the truck, or go into the convenience store. Mitchell also saw a white
Ford sedan park next to Evens' truck. The sedan's driver, a Hispanic female, walked into the store, and the passenger,
a black male, later identified as Robert Lewis Smith, Jr., got out of the vehicle, walked around the back of it, and got
into Evens' front passenger seat.
2Mitchell witnessed the events from less than 100 yards away from Evens' vehicle. Mitchell testified that, based on
his training and experience, he believed a drug transaction had just occurred between Evens and Smith. Mitchell
called other officers to stop Evens and Smith when they left the convenience store. Jason Whitten and Vic Roberts,
also investigators with the Greenville Police, were in Mitchell's vehicle throughout the incident. Whitten's testimony
describing the events substantially matched that of Mitchell.
3Officer Larry Henderson, responding to Mitchell's call, stopped Smith's car in the gas station's parking lot, got out
and approached the car. Henderson saw Smith, who was sitting in the front passenger seat, make a "distinct stuffing
motion to the left side in between the driver seat and the passenger seat." After having Smith and the other passenger
get out of the car and identifythemselves, Henderson determined that Smithhad at least one outstanding warrantfor
his arrest. Henderson took Smith into custody, pursuant to the arrest, searched the area of the car where Smith made
the stuffing motion, and found a bag containing what was later determined to be about five grams of crack cocaine.
Smithtestified that he had bought seven grams of crack cocaine from Evens,but Mitchelltestified that the 5.63 grams
of crack cocaine found in Smith's car could have weighed about seven grams at the time of sale and seizure, because
crack dries out while in police packaging and frequently weighs less at the time it is tested than it did at the time it
was sold.
Smith testified for the State at trial. He admitted that he met Evens at the NAT 24 gas
station and bought seven grams of crack cocaine from him. He intended to resell half of the drugs
he bought from Evens in another county. Smith paid Evens $200.00, made up often twenty-dollar
bills4
The State also introduced as an exhibit the transcript of Evens' prior testimony in a federal
case, United States v. Anderson, No. 4:1 l-CR-166, 2013 WL 2242322 (E.D. Tex. May 21, 2013,
order) in which Evens admitted that (1) his most recent employment included selling drugs,
including crack cocaine, (2) he distributed drugs in "Hunt County, Greenville, Texas" from
February 2010 through September 2011, (3) he had drug customers in the Greenville area and also
a customer from Emory, Texas, (4) he primarily delivered crack cocaine to his customers at
convenience stores in Greenville, (5) a typical sale of crack cocaine consisted of 3.5 grams, but
he also sold it in 7-gram amounts, called a "Vick," and (6) he remembered meeting with Smith at
a convenience store and subsequently being stopped by police while having over $1,000.00 in cash
in his possession.
Evens was found guiltyand sentenced to life in prison.5
On appeal, Evens argues that, because Smith was an accomplice, the trial court erred by
omitting the accomplice-witness instruction from the jurycharge6 and Smith's testimony was not
"•Mitchell testified that, at the time of the incident, sevengrams of crack cocainewas sellingon the street for $200.00.
5Due to two prior felony convictions, Evens' punishment range was enhanced to twenty-five to ninety-nine years or
life in prison.
6Whether a witness is an accomplice canbe decided as a matter of law or of fact, and the evidence in each case will
determine that question. Cocke v. State, 201 S.W.3d 744 747 (Tex. Crim. App. 2006). If the evidence is conflicting
i-'or unclear on this point, tfiejury should answer the" question. Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. S
sufficiently corroborated7—both arguments premised on Smith's alleged status as an accomplice
to the charged offense. We affirm the trial court's judgment because Smith was not an accomplice
to Evens' offense.
"An accomplice is an individual who participates with a defendant before, during, or after
the commission of the crime and acts with the requisite culpable mental state." Cocke v. State,
201 S.W.3d at 748. To become an accomplice, the individual must take an affirmative action that
promotes the commission of the charged offense. Paredes v. State, 129 S.W.3d 530, 536 (Tex.
Crim. App. 2004). Evidence must demonstrate that the individual participated culpably in the
charged offense. Id.; see Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998).
______^__ __ _
Evidence must support charging the individual with the charged offense. Blake, 971 S.W.2d at
455. That the individual is complicit with the accused in committing an offense other than the one
charged is insufficient to make him or her an accomplice. Druery v. State, 225 S.W.3d 491, 498
(Tex. Crim. App. 2007). One is not an accomplice witness who cannot be prosecuted for the
_.y*
offense with which the accused is charged. Kunkle v. State, 111 S.W.2d 435, 439 (Tex. Crim.
App. 1986); Sheffield v. State, 847 S.W.2d 251 (Tex. App.—Tyler 1992, pet. refd).
The record in this case contains no evidence that Smith participated with Evens by "an
affirmative act that promoted" Evens' possession with intent to deliver. See Paredes, 129 S.W.3d
1998). Whether a jury instruction is needed requires a case-specific and fact-specific inquiry. Cocke, 201 S.W.3d at
748.
7A conviction cannot rest solely on the testimony of an accomplice, but requires corroborationby other evidence that
/
tends to connect the defendant to the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). The other, non-
accomplice, evidence is not required to establish guilt beyond a reasonable doubt, but need onlytend to connect the
defendant to the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997).
" 2 -\_ ,
/• at 536. Though Smith, like Evens, could have been charged with possession of more than four
grams, but less than 200 grams, of crack cocaine with intent to deliver, Smith could not be charged
\\ with Evens' possession with intent to deliyer or a lesser-included offense thereof. To the contrary,
Smith's charge would be based on a separate and distinct instance of possession with intent to
deliver—it would not be the same offense with which Evens was charged. Because Smith could
not be prosecuted for the same offense as Evens, he cannot be an accomplice witness. See Kunkle,
•_______ . _ _________ _y
I 771 S.W.2dat439.
Finding no evidence that Smith took any action that promoted Evens' possession of the
contraband, with Evens' intent to deliver the same, we must conclude that there was no fact
question on whether Smith encouraged or aided Evens in committing the charged offense. See
_J£orell v. State, 253 S.W.3d 405, 409-12 (Tex. App.—Austin 2008, pet. refd). The evidence in
this record is that Smith's involvement with Evens was strictly as his buyer, not an accomplice.
See Hoffman v. State, 70 S.W.2d 182, 184 (Tex. Crim. App. 1934) (during prohibition, person
aiding only purchaser of whiskey, not accomplice of whiskey seller).
Because, as a matter of law, Smith was not an accomplice as to the charged offense of
Evens, the trial court was not required to provide the jury with an accomplice-witness instruction
and corroborating evidence need not be analyzed for sufficiency.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 2, 2015
Date Decided: September 18,2015
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