No. 05-12-00121-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 06/12/2012 14:00 Lisa Matz, Clerk JESUS MANUEL GASPAR, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the 195 th Judicial District Court of Dallas County, Texas In Cause No. F09-30667-N APPELLANT S BRIEF Counsel of Record: Lynn Richardson Julie Woods Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No. 24046173 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Katherine A. Drew Dallas, Texas 75207-4399 Chief, Appellate Division (214) 653-3550 (phone) Dallas County Public Defender s Office (214) 653-3539 (fax) Julie.Woods@dallascounty.org Attorneys for Appellant
LIST OF PARTIES APPELLANT Jesus Manuel Gaspar DEFENSE COUNSEL AT TRIAL Jorge Sanchez 100 Crescent Ct., Suite 700 Dallas, Texas 75201 STATE S ATTORNEY AT TRIAL Danielle Uher Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 APPELLANT S ATTORNEY ON APPEAL Julie Woods Dallas County Public Defender s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas 75207-4399 STATE S ATTORNEY ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 ii
TABLE OF CONTENTS LIST OF PARTIES...ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 2 POINT OF ERROR The evidence is legally insufficient to support the trial court s deadly weapon finding. STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 CONCLUSION... 11 PRAYER... 11 CERTIFICATE OF SERVICE... 12 iii
INDEX OF AUTHORITIES Cases Bahr v. State, 295 S.W.3d 701 (Tex. App. Amarillo 2009, pet. ref d)... 5 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)... 3 Coleman v. State, 145 S.W.3d 649 (Tex. Crim. App. 2004)... 5 Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App. 1980)... 6 Dowdle v. State, 11 S.W.3d 233 (Tex. Crim. App. 2000)... 4 Escobedo v. State, No. 2-09-00348-CR, 2-09-00349-CR, and 2-09-00350-CR, 2010 Tex. App. LEXIS 9589 (Tex. App. Fort Worth December 2, 2010, no pet.) (not designatedfor publication)... 5, 6 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)... 3 Jackson v. Virginia, 443 U.S. 307 (1979)... 3 Patterson v. State, 769 S.W.2d 940 (Tex. Crim. App. 1989)... 4 Torres v. State, 233 S.W.3d 26 (Tex. App. Houston [1st Dist.] June 28, 2007, no pet.)... 11 United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000)... 4 iv
White v. State, No. 05-08-00241-CR, 2011 Tex. App. LEXIS 9332 (Tex. App. Dallas November 22, 2011, no pet.) (not designated for publication)... 3 Statutes TEX. CODE CRIM. PROC. art. 42.12 3G(a)(2)... 4 TEX. PENAL CODE 1.07(a)(17)... 4 v
TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Jesus Manuel Gaspar, and submits this brief on appeal from a conviction in the 195 th Judicial District Court of Dallas County, Texas, the Honorable Fred Tinsley, judge presiding. STATEMENT OF THE CASE A grand jury indicted Appellant for possession with intent to deliver methamphetamine in an amount of 4 grams or more but less than 200 grams, and he went open to the judge for punishment. 1 (CR1 2 : 5; RR2: 7). The indictment contained an enhancement paragraph for a prior felony conviction and a deadly weapon allegation. (CR1: 5). Appellant judicially confessed to the charge. (CR1: 66). He entered a plea of true to the enhancement paragraph for his prior felony conviction, but entered a plea of not true to the deadly weapon allegation. (RR2: 8). The court accepted Appellant s guilty plea and plea of true to the enhancement paragraph and made a finding of true to the deadly weapon allegation. (RR3: 71-72). The court sentenced Appellant to 35 years imprisonment. (CR1: 67; RR3: 71-72). Appellant timely filed his notice of appeal. (CR1: 70). 1 The open plea hearing for this case was held in conjunction with five other cases: Trial Cause No. F09-30668-N, F09-59161-N (Appellate Cause No. 05-12-00122-CR), F10-30839-N (Appellate Cause No. 05-00123-CR), F10-30840-N (Appellate Cause No. 05-12-00124-CR), and F10-31282-N. (RR2: 4; RR3: 4). Appellant did not file a notice of appeal in Trial Cause No. F09-30668-N or F10-31228-N. Appellant filed a notice of appeal in F09-59161- N (Appellate Cause No. 05-12-00122-CR), F10-30839-N (Appellate Cause No. 05-00123-CR), F10-30840-N (Appellate Cause No. 05-12-00124-CR) and has filed with this Court a separate brief in those causes. 2 The Clerk s Record in this cause is referred to as CR1. 1
ISSUE PRESENTED POINT OF ERROR The evidence is legally insufficient to support the trial court s deadly weapon finding. STATEMENT OF FACTS In June 2009, the Grand Prairie Police Department executed a search warrant at an apartment. (RR3: 5). Prior to executing this search warrant, police conducted surveillance on the apartment. (RR3: 17). While conducting this surveillance, police saw Appellant exit the apartment along with a woman. (RR3: 17). Appellant got inside a car and the woman entered a separate vehicle with a neighbor. (RR3: 17). The vehicles drove away. (RR3: 17). Police then executed the search warrant and found two men, Tomas and Jose, inside the apartment. (RR3: 18). Tomas told officers that there were drugs in the master bedroom closet. (RR3: 19). The officers found marijuana in a pink suitcase inside the master bedroom closet, empty baggies in the master bedroom closet, a digital scale and calculator in the kitchen area, and a gun on the top shelf of the master bedroom closet. (RR3: 7-9). The gun contained one bullet. (RR3: 22-23). The officers also found what appeared to be a cutting agent for methamphetamine in a Pasta Roni box in the kitchen cabinet. (RR3: 8). As a result of this search, police arrested Appellant. (RR3: 5). SUMMARY OF ARGUMENT The State did not sufficiently prove that Appellant used or exhibited the gun while committing the offense. Therefore, the court s deadly weapon finding should be deleted from the judgment. 2
ARGUMENT Standard of Review Legal sufficiency of the evidence is measured by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, i.e., whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 443 U.S. 307, 319, n.12 (1979). The Jackson standard is the only standard a reviewing court should apply to determine if the State proved each and every element of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). The reviewing court must defer to the fact finder s credibility and weight determinations since the trier of fact is the sole judge of the credibility of a witness s testimony. Id. at 899; see also White v. State, No. 05-08-00241-CR, 2011 Tex. App. LEXIS 9332, at *3 (Tex. App. Dallas November 22, 2011, no pet.) (not designated for publication). The reviewing court determine[s] whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). A court s review of the evidence includes all admitted evidence regardless of whether the admission of evidence was erroneous. White, 2011 Tex. App. LEXIS 9332, at *2. Applicable Law A deadly weapon is defined as (1) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or 3
(2) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. TEX. PENAL CODE 1.07(a)(17). If the trial court makes an affirmative finding that a defendant used or exhibited a deadly weapon during the commission of a felony offense or during the immediately flight therefrom or was a party to the offense and knew a deadly weapon would be used or exhibited, the court is required to enter that finding in the judgment. TEX. CODE CRIM. PROC. art. 42.12, 3G(a)(2). The Court of Criminal Appeals has addressed what constitutes using or exhibiting a deadly weapon during the commission of an offense. Use and exhibit do not have the same meaning. Patterson v. State, 769 S.W.2d 940 (Tex. Crim. App. 1989). To use a deadly weapon means to employ or utilize the deadly weapon in order to achieve its purpose. Id. at 941. To exhibit a deadly weapon means to consciously show or display the deadly weapon while committing the offense. Id. A person can use a deadly weapon without exhibiting it, but cannot exhibit a deadly weapon without using it. Id. Possession of a firearm may be sufficient to establish that a person used a deadly weapon. Dowdle v. State, 11 S.W.3d 233, 237 (Tex. Crim. App. 2000). However, the possession of the firearm must facilitate the commission of the felony. Patterson, 769 S.W.2d at 941. Although guns and drugs often go together, the fact that a drug dealer has a gun does not automatically establish that he used the gun during the commission of a felony offense. Rather, the State must show that the gun was used to further the offense. See United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000) (rejecting the notion 4
that any time a drug dealer possesses a gun the possession is automatically in furtherance of the felony offense and instead requiring evidence specific to show that the accused s possession of the gun furthered the offense); Coleman v. State, 145 S.W.3d 649, 658 (Tex. Crim. App. 2004) (Cochran, J., concurring) (noting that guns and drugs cases are not so clear-cut, and courts should require evidence showing that the particular defendant s possession of the gun furthered the drug trafficking operation). Judge Cochran s concurring opinion in Coleman identified a list of factors useful in determining whether the accused used a deadly weapon in the commission of a felony: (1) the type of gun involved (noting that a handgun is more likely to be considered a deadly weapon), (2) whether or not the gun was loaded, (3) whether or not the gun was stolen, (4) the proximity of the gun to the drugs, drug paraphernalia, or other items used to manufacture drugs, (5) accessibility of the gun to the person who controlled the premises, (6) the quantity of drugs involved, and (7) evidence that established another reason for the presence of the gun. Id. at 658-60. Several courts of appeals have relied on this list of factors for guidance in evaluating the sufficiency of a deadly weapon finding. See, e.g., Bahr v. State, 295 S.W.3d 701, 709-10 (Tex. App. Amarillo 2009, pet. ref d) (holding that the evidence was sufficient to support the deadly weapon finding because there were two loaded weapons in the defendant s office, one of which was a few feet from defendant, the defendant was present during the search, there was additional ammunition in the office, and the officers located drugs, drug paraphernalia, and cash in the office); Escobedo v. State, No. 2-09-00348-CR, 2-09-00349-CR, and 2-09-00350-CR, 2010 Tex. App. LEXIS 5
9589, at *13-16 (Tex. App. Fort Worth December 2, 2010, no pet.) (not designated for publication) (applying the Coleman factors in finding that the evidence was sufficient to support a deadly weapon finding because the defendant s black bag contained drugs, digital scales, a grinder, an unloaded pistol, an unloaded revolver, and two magazines with six bullets each, and the defendant had methamphetamine and a significant amount of cash in his pocket and admitted to possessing the guns). Analysis Appellant recognizes that a judicial confession, standing alone, is sufficient to support a conviction. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980). Appellant acknowledges that he signed a judicial confession to the charge. (CR1: 66). However, the record is clear that Appellant entered a plea of not true to the deadly weapon allegation. (RR2: 8). The prosecuting attorney acknowledged Appellant s plea of not true to the deadly weapon allegation. (RR2: 8). Appellant s defense centered on the deadly weapon allegation. (RR3: 16-24, 34-45, 53-58, 63-70). Thus, the judicial confession in Appellant s case does not stand alone, and the record clearly reveals that he intended to, and did, enter a plea of not true to the deadly weapon allegation. The prosecuting attorney recognized his plea of not true and specifically asked the court to make a finding of true or not true as to the deadly weapon allegation. (RR2: 8). Consequently, the State was required to prove that a deadly weapon was used or exhibited during the commission of the offense. The State failed to meet its burden. 6
Appellant did not exhibit the gun during the commission of the offense. Appellant was not inside the apartment when the police officers executed the search warrant. (RR3: 17). He was, therefore, nowhere near the gun found on the top shelf of the closet. The State offered no evidence that Appellant consciously showed or displayed the gun. Thus, he did not exhibit the gun for purposes of a deadly weapon finding. Appellant did not use the gun during the commission of the offense. In Appellant s case, there was one handgun with no bullets in the chamber and a magazine containing only one bullet. 3 (RR3: 22-23). There were no other firearms or weapons found, and there was no additional ammunition located in the apartment. (RR3: 23). The expert police officer who testified that guns and drugs go together also conceded that in his 27 years as a police officer he had never seen a situation where a person engaged in drug dealing had a weapon with only one bullet and no other ammunition. (RR3: 57-58). Appellant s counsel and the expert police officer engaged in the following exchange: Q [BY DEFENSE ATTORNEY] Would you expect a drug dealer to have one bullet in the gun? A [BY EXPERT POLICE OFFICER] Yes. Loaded with one bullet? Yes. 3 Under cross-examination, the responding officer testified that the gun was loaded and there was one bullet in the chamber. (RR3: 22). However, when defense counsel refreshed his memory using his police report, he corrected his mistake and testified that the chamber did not have any bullets, but the magazine contained a bullet. (RR3: 22-23). 7
Q Detective Junker, come on now. Are you telling me under oath that you re expecting a drug dealer who s going to ward off law enforcement, ten or twelve officers, or home invaders, it s common that they have only bullet in the gun? A Let me make sure you re asking this right. Are you talking about one round in the chamber? Q A Q No. I m talking about one bullet. One bullet altogether? Altogether. A That s rarely seen. I can t say that I have seen that. Now that I m on your question, then yes. The answer is have I seen that? No, not that I can recall. (RR3: 56-57). The expert police officer s testimony does not prove, but rather contradicts the notion that Appellant used the gun to facilitate the felony offense. Therefore, his testimony does not sufficiently support a deadly weapon finding in Appellant s case. There was no evidence of who owned the gun or to whom it was registered. There was no evidence that the gun belonged to or was previously used by Appellant. The gun was not located near the drugs or drug paraphernalia found in the apartment. The gun was on the top shelf of Ms. Quiles s closet. There was no testimony concretely establishing that methamphetamine was located in the suitcase. The officer testified that illegal narcotics were found in the suitcase, but only specifically identified marijuana in the pink suitcase. (RR3: 7). Because the deadly weapon allegation was pleaded in the indictment that charged Appellant with possession with intent to deliver methamphetamine, the State was required to establish that Appellant used or exhibited 8
the deadly weapon while possessing with intent to deliver methamphetamine. The gun was nowhere near the methamphetamine found in the kitchen. Even if a court found that the gun was close enough to the drugs in the enclosed suitcase to establish that the gun was used to protect the methamphetamine, which Appellant does not concede, the State still failed to meet its burden because the totality of the circumstances do not connect Appellant to the gun. Although mere possession of a firearm may be sufficient to establish that a person used a deadly weapon during the commission of an offense, the State did not prove that Appellant possessed the gun. The evidence does not establish that Appellant had possession of the gun. First, the apartment where police executed the search warrant and found drugs, drug paraphernalia, and the gun was leased to Appellant s aunt or mother/stepmother 4 and Appellant s girlfriend/common law wife. 5 (RR3: 24, 29). Appellant occasionally stayed in the apartment, but did not live there full time. (RR3: 24, 29). Officer Clark testified that the apartment was not leased to Appellant, but rather to Appellant s aunt and girlfriend. (RR3: 24). Ms. Quiles, Appellant s girlfriend, also testified that the apartment was hers and that she lived there with her daughter and Appellant stayed with her sometimes, but not all the time. (RR3: 29, 38). Second, Ms. Quiles testified that the master bedroom was her bedroom and that Appellant did not sleep in that bedroom when he stayed at the apartment. (RR3: 39). 4 The exact designation is unclear from the record as both terms were used during testimony. (RR3: 24, 29). 5 Defense counsel referred to her as Appellant s common law wife. (RR3: 17). She testified that she was his onand-off girlfriend. (RR3: 29). 9
Therefore, the closet in her bedroom where the gun was located belonged to her. Officer Clark testified that the gun was found in Appellant s roommate s bedroom. (RR3: 14). Although he did not identify the roommate, it is clear that the gun was found in a bedroom closet that did not belong to Appellant. Not only did the bedroom closet not belong to Appellant, three people other than Appellant had access to the closet that day: Miss Quiles and the two men, Tomas and Jose, who were present during the execution of the search warrant. (RR3: 18). The only two people in the apartment when the officers executed the search warrant were Tomas and Jose. (RR3: 18). There was no evidence that Appellant was in and out of the closet at any time close to the day the officers searched the apartment. Third, the pink suitcase in which the police found drugs belonged to Ms. Quiles. (RR3: 39). She testified that the pink suitcase was hers and that she used the suitcases for her beauty school supplies and accessed the suitcases on a daily basis. (RR3: 39-40). Fourth, the officers found the gun on the top shelf of the master bedroom closet. (RR3: 8). Although the gun was found in the same closet as the suitcase containing marijuana, the gun was not located close to those drugs or situated in a place where someone could easily access it to protect the drugs. (RR3: 7). The gun was on the tall top shelf of the closet. 6 (RR3: 21). The gun was clearly not in a place where it could have been easily accessed and used to protect the methamphetamine paraphernalia found in the kitchen cabinet. 6 The responding police officer first testified that the gun was in plain view, but then conceded that the top shelf was high and a person would have to be at least six feet four inches tall to see the gun on that shelf. (RR3: 21). 10
Fifth, there was no evidence or testimony connecting Appellant to the gun. There was no evidence that the gun had Appellant s fingerprints. (RR3: 23). There was no evidence that the gun was registered to Appellant. Although Ms. Quiles testified that Appellant usually had a gun, she did not testify nor did the State establish that Appellant ever owned or used that particular gun on the top shelf of the closet. (RR3: 33). Finally, when the officers executed the search warrant, Appellant was not inside the apartment. (RR3: 17-18). He had already exited the apartment. (RR3: 17). The gun was not easily accessible to him that day. CONCLUSION The State did not establish that Appellant used or exhibited the handgun found in the closet to facilitate the commission of the offense of possession with intent to deliver methamphetamine. The State failed to sufficiently connect Appellant to the handgun and did not establish that Appellant used the gun to facilitate the felony offense. Thus, the judgment should be reformed to remove the deadly weapon finding. Torres v. State, 233 S.W.3d 26, 32 (Tex. App. Houston [1st Dist.] June 28, 2007) (no pet.). PRAYER Appellant prays that this Court reform the judgment to delete the deadly weapon finding. 11
Respectfully submitted, Lynn Richardson Julie Woods Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No. 24046173 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Katherine A. Drew Dallas, Texas 75207-4399 Chief, Appellate Division (214) 653-3550 (phone) Dallas County Public Defender s Office (214) 653-3539 (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney s Office (Appellate Division), 133 N. Riverfront Blvd., 10th Floor, Dallas, TX 75207 by hand delivery on June 7, 2012. Julie Woods 12