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Court of Appeals of Texas, Dallas.


No. 05–10–00584–CR

Decided: December 30, 2011

Before Justices Moseley, Francis, and Myers


Opinion By Justice Myers

Appellant, Marisela Villa, was convicted of aggravated assault on a public servant 1 and possession with the intent to deliver cocaine 2 and methamphetamine.3  In ten issues, she argues that the evidence is insufficient to support the convictions, the trial court erred by overruling appellant's objections to the State's evidence and to the jury charge, the trial court further erred by denying appellant's motion for mistrial and request to instruct the jury, and that the trial court's order to withdraw money from appellant's inmate trust fund account violated the Government code and appellant's due process rights.   We affirm the trial court's judgments.

Background and Procedural History

The evidence at trial showed that Villa shot Lt. Carlton Marshall, a Dallas Police Department

Special Weapons and Tactics (SWAT) officer, in the neck as he led a SWAT team that was executing a “no knock” warrant at 1110 South Hollywood Avenue, Dallas, Texas, where Villa resided.   Villa argued she was acting in self-defense when she fired the weapon at Marshall, and that she did not know he was a police officer.

According to the record, the Dallas SWAT team executed the “no knock” search warrant shortly after 6:00 a.m. on the morning of October 17, 2007.   The search warrant, signed by a federal magistrate, was based on a twenty page affidavit detailing information obtained through several years of investigation of narcotics and narcotics-related activities occurring at various locations, including the South Hollywood Avenue home, which was the residence of Clayton Sharpless.   Jerry Girdler, a sergeant in the Dallas SWAT unit, testified that the execution of the search warrant was considered a “high risk apprehension” because of the “number of suspects that were involved” and “the fact that they were more than likely armed at the time that we would confront them.”

Shortly before entering the South Hollywood Avenue residence, the SWAT team deployed two “flash-bang” or “diversionary” devices just outside of the home in order to distract the residents.   Then, after those devices detonated, officers immediately breached the doors and windows.   Officer Larry Gordon was assigned as the “point man,” the first officer to enter the residence.   He testified that, after hearing the “flash-bang,” he stepped aside and another officer with a “breaching tool” or “slammer” “busted” the front door.   Gordon entered the home through the front door and cleared the first room, yelling the word “police” several times.   He said that everyone on his six-man team was wearing vests with lettering reading “POLICE.”

Officer Mark Villareal, another member of Gordon's front-entry team, explained that as they entered the residence, “Several officers were announcing our presence, yelling ‘police, police’ very loudly to announce our presence to anyone inside the structure.”   Girdler, who was on the home's porch when the front and rear-entry teams went inside, also heard officers continually “identifying themselves as police officers.”   He explained that the purpose of the “no knock” warrant is to prevent suspects from taking up arms and firing upon police officers before they can enter a residence.   The “no-knock” warrant “does not mean that you don't announce your presence as a police officer,” and officers “still are required” to announce they are police officers.  “And it's just a good idea,” Girdler added, “to let someone know that you are a police officer.”

Gordon testified that as he moved through the residence, he encountered a suspect in the hallway, outside of the master bedroom.   Gordon “lit him up with [his] flashlight, yelling at him, ‘Get down on the ground.   Police.  Get down on the ground.’ ”   As he placed the suspect face “down on the floor,” Gordon heard what he “thought was a gunshot.”   The shot, which sounded to Gordon like a “muffled pop,” came from the master bedroom.   A few seconds after hearing the gunshot, Gordon heard in his radio earpiece the words, “Officer down.”   Girdler likewise recalled that, as the SWAT team entered the home, he heard a “sound”—he realized only later that it was a gunshot—then “someone came over the radio and said that an officer was down.”

Gordon held the suspect down with his foot while he peered into the master bedroom, where he saw Sharpless, who had only one leg,4 “hopping” on that leg and “trying to hold himself up.”   Sharpless was holding his “hands up” and Villa was “behind the bed holding a baby.”   Gordon instructed officers on the “second team,” which was behind him, to enter the bedroom and take the suspects into custody.

Villareal saw Gordon detain the suspect in the hallway.   Two other officers then made their way toward the open master bedroom door, and Villareal stopped at a locked bathroom door.   Villareal estimated it took him “fifteen or so” seconds to reach the bathroom, which was located just off the hallway.   After another officer kicked open the door, Villareal entered the bathroom shouting “police,” and detained a suspect who was standing in the bathtub.   The suspect “had his hands in the air” and was screaming, “Don't shoot me, don't shoot me.”   There was a firearm wrapped in a towel at the suspect's feet.   Villareal testified that all of the officers wore “heavy vests” that “have the large letters ‘POLICE’ written across the front plainly visible to anybody.”   As he detained the suspect, Villareal heard over the radio that “there was an officer down outside the residence.”   Villareal did not hear a gunshot.

Officers Tim Houston and Matt Smith were assigned to the “port and cover” team, which was supposed to break the windows of the home and alert the occupants to the police presence.   One officer “ported out” or broke the window while the other “covered” that officer with his rifle.   Smith testified that they broke one of the two windows of the master bedroom, where Villa was sleeping, only seconds after the first “flash-bang” device detonated.   Smith recalled that officers believed the target of the investigation, Sharpless, was in that room.   Officers were also told during a briefing that there “could be multiple people inside this residence,” including a woman and a young child.   Smith recalled that Houston repeatedly announced “Dallas Police” as soon as they broke the window.   Houston explained that “[w]e're taught from your basic time in warrant school that, once you begin any breaching, we start announcing ‘Dallas Police.’ ”

Once the master bedroom window was broken and cleared away, Smith and Houston pointed the lights affixed to their rifles through the window, which illuminated the room.   The officers testified that, when they saw the suspects, they yelled, “Don't move.   Show me your hands.”   The officers also continued to announce themselves as police.   Smith testified that he saw Villa sit “straight up” in bed, and that she “looked back over her right shoulder” directly at the officers.   Smith “could see a small child next to her.”   Smith said that Villa then “started rolling ․ away from us ․ out of our field of view,” and that Sharpless, who had been laying next to Villa, was searching for something in the bed “for a good ten seconds or so” before he “just kind of stood up” on one leg and “put both of his hands in the air.”

Smith testified that this “went on for quite some time” when he heard, to his right, the sound of a window breaking.   Smith looked over his right shoulder and saw Marshall “breaking out that window.”   Girdler explained that Marshall was on the “right rear” side of the residence at the start of the operation, and Houston noted that Marshall's primary assignment had been to deploy a “flash-bang” device and “cover” the backyard.   Smith testified that Marshall reached into the window and pulled back the carpet, after which he heard a gunshot and saw Marshall “fall straight down on the ground from where he was standing.”

Smith ran to that window and looked through “the bottom right corner where ․ the rug had been pulled back.”   He testified that he saw Villa “sitting near the edge of the bed leaning into it, holding the baby, looking back at me, and I started announcing again, ‘Dallas Police.   Show me your hands.   Show me your hands.’ ”   Smith recalled that Villa “kind of turned towards [me] and put the baby between her and I, and she looked back over her left shoulder back into the room way from me.”   Smith again commanded, “Show me your hands.   Dallas police.”   At that point, Smith could hear “the front entry team coming into the room and taking custody of the people in the room.”

Houston likewise testified that, after they broke the master bedroom window, the light on his rifle illuminated the room, and he saw an Hispanic female, an infant, and a white male.   The female sat up in bed and the white male, Sharpless, jumped out of the bed and started rummaging through the sheets.   Houston explained that Sharpless eventually “just looked up and he showed me his hands,” but the Hispanic female “had gone off to the right side of the bed,” out of Houston's view.   Houston testified that he “continued to give commands to” Sharpless until he “heard glass breaking” to his right, and then heard what he “thought was a muffled gunshot.”   Houston noted that the sound of the gunshot came “from the right side of the room.”

Marshall sustained a gunshot wound to the right side of his neck.   Dr. Alexander Eastman, a physician on the Dallas SWAT team, provided emergency medical treatment at the scene, and Marshall was transported to Methodist Hospital.   Eastman, who had participated in other police operations, was stationed outside of the residence.   He did not hear a gunshot.   Eastman recalled that he did not hear the words “officer down” until “several rounds” of “police” announcements had been made, and “it seemed like it was very late” after the first “flash-bang” device detonated.

Marshall, forty-six years old at the time of trial, testified that his role on the SWAT team was supervisory, and that he reviewed plans and provided final approval of warrants.   He also testified that, because of his injury, he had no memory of the events of October 17, 2007.   He said that he spent months in the hospital and attempted to return to police work following a lengthy period of rehabilitation.   But after being back on the job for approximately six months, he realized that he could no longer work because of chronic pain, and retired.   Marshall also testified that he and the new SWAT Chief had had a “difference of opinions,” and that Marshall believed the new chief “was trying to reduce training in SWAT.” He said that he wrote the chief a memorandum on August 17, 2007, that tried “to explain the importance of training” and attempted to persuade the chief to reinstate previous training levels.   Marshall did not believe his men were ill-equipped to do their job.   He stated that, “[C]ompared to other SWAT units ․ across the country ․,” “Dallas is one of the premier SWAT teams.”   Marshall explained that he wrote the memorandum because he wanted to “bolster our training to where it should be to keep our skill levels and keep improving our skill levels.”   He also testified that officers are “going to be qualified;  otherwise, they wouldn't be in that position.”   Yet even with exemplary training and execution, “something bad can still happen.”

After securing the residence, law enforcement officers found and seized various narcotics, firearms, and other items.   Officers seized over four grams each of cocaine and methamphetamine from throughout the residence, including the master bedroom, and in the master bedroom officers found a “Crown Royal bag” that contained a large amount of cash.   Officers seized ledgers, “drug notes” that memorialized details of narcotics transactions, and other bookkeeping-related documents.   They found electronic scales and small plastic “baggies” throughout the residence.   Officers also seized a variety of firearms and ammunition.   They found a Sig Sauer P228 pistol and two clips of ammunition in the living room, and a Ruger 9 millimeter pistol in the bathroom.   In the master bedroom, officers found a Sig P22 .45 handgun on the floor, a Colt Gold .45 handgun on the bed, a “mini Uzi” under the bed, as well as various quantities and types of ammunition.   Investigators discovered infrared surveillance cameras positioned around the exterior of the home, and live-feed television monitors inside the home, including Villa's bedroom, that enabled the viewer to “actually look and see who was outside.”   The cameras were sophisticated enough to enable a viewer to see an “image up to forty feet away” “clear as a bell.”   Dallas investigating detective Gary O'Pry testified that he instructed officers to stand outside the master bedroom window, and that the live-feed monitor in Villa's bedroom showed a “clear picture” that would have enabled the viewer to see what individuals were wearing and their faces.

Tammy Cooper testified that she was a recovering drug addict who had been to prison twice for drug-related offenses.   She had known Villa for “a couple of years.”   She testified that she had visited the South Hollywood Avenue home “about every other day” to purchase drugs, including on the night before the SWAT operation, and “dealt with [Villa] a lot.”   Cooper testified that Villa personally handed her the drugs when she went to the house to buy drugs, usually methamphetamine and occasionally marijuana, and that Villa “dealt with me and anybody else that would come” to the house.   Cooper recalled that appellant dealt drugs before, during, and after her pregnancy, because “that's how they lived.”   Cooper added that “[n]obody had a 9:00 to 5:00 job in there.”

Cooper said it was “not hard to figure out” that the residence was being used as a place for dealing drugs, and that the occupants of the home kept “all kinds of weapons” “just laying out,” including “pistols, rifles, shotguns, knives, tasers ․ Uzis, street sweepers.”   Cooper recalled that “everybody had guns.”   She also explained that the occupants of the home had “mean” dogs and maintained surveillance cameras and television monitors throughout the house, and that “there were people watching the monitors all day.”   Those monitors enabled the occupants to see “what's going on outside,” including “the front door and the street,” even at night.   Cooper noted that there was a “huge” television monitor in the master bedroom.

Tammy Gonzalez, on electronic monitoring for a probation revocation following a prior drug conviction, testified for the defense that she had known Villa since 2005, and that they were “good friends.”   Gonzalez recalled that she and Villa started using drugs together in September of 2005, and that she met Sharpless at “about the same time.”   Gonzalez testified that, on July 4, 2006, she was with Sharpless and her boyfriend at a Wal–Mart when she received a telephone call from Villa.   Villa, described by Gonzalez as crying and “very terrified,” said that she had suffered a home invasion.   Villa reported that three armed men had entered her garage, announced, “[T]his is a stickup,” and that they “tried to rob the place.”   Gonzalez said that when she arrived at the South Hollywood Avenue residence, she found blood “everywhere.”   She discovered that Villa's pit bull had been shot, and she took the dog to an animal hospital for treatment.   Gonzalez remembered that Villa “was crying and ․ shaking and ․ really frantic.”   Gonzalez asserted that, after the home invasion incident, Villa “never wanted to be alone,” and that “[s]he always had to have somebody with her and made sure the doors were locked all the time.”

Villa, twenty-one years old at the time of trial, testified in her defense that Sharpless was “just my boyfriend” and that “I just did what he told me to do.”   The two of them started dating in December of 2005, and started living together in January of 2006.   Villa contended that she was not aware Marshall was an officer when she shot him.   She testified that on the morning of the operation:

․ I woke up to my brother saying something.   And next thing I know I just started hearing boom.   And I thought they were shooting at us, and I'm trying to wake up—I'm trying to wake up [Sharpless].   And I just—I just reached underneath his pillow to grab the gun to give to him and then next thing you know—

* * * *

And then I started hearing [the] window breaking, and I heard a window breaking where my little girl was laying at, so I fired the—I fired the gun on this side to just scare the robbers that I thought were outside.   And when I fired the gun, I—I jumped because I heard the shot and I—and I just threw the gun.   And when I turned around, I picked up my little girl that's when I started backing away from the—from the windows.   That's when they were telling me to [']don't move,['] and I turned around and that's—that's the first time I seen the officer and I seen the white—white stuff on his chest.   I—I couldn't read it, but I knew it was the officer because he kept saying, [']don't move, ['] and he was telling somebody else, [']don't shoot, she's got the baby. [']  And they kept telling me, [']don't move,['] but I kept backing away from the bed.   And then I ended up in the corner by the refrigerator and I squatted down with my little girl in my arms and everything.   Just—just noise everywhere.

Villa contended she was just “trying to scare” a man that she believed was a robber, and that she never saw anyone at the window in the area where she shot, nor did she hear anyone say the word “police” before she fired the gun.   Villa said that “if I would have heard [them] say ‘police,’ I would never have picked up the gun.”

Villa denied that she turned and looked back at Smith and Houston when she heard the window breaking, or that she grabbed her child and “rolled off” the bed.   Villa further testified that, after she shot Marshall, Sharpless searched the bed because he was trying to find the gun.   According to Villa, Sharpless “kept saying, ‘where's the gun, who shot the gun, where's the gun.’ ”   Villa admitted that there were two guns “in that bed,” and denied knowing whether they were loaded.   She acknowledged that she could not recall the precise order of events because “[e]verything happened so fast.”

Villa also described the July 2006 home invasion.   She recalled that, in the middle of the day, she was in her garage with a man named “Kelly,” when “two guys just popped inside the garage,” pointed a gun at her, and said “[T]his is a bust, don't move.”   She said that she turned around, screamed, “starting running,” and that the men “starting shooting” their guns.   Then Kelly threw her to the floor, and she “started crawling.”   By the time Villa “finally made it into the house,” the gunfire had stopped and the men had left.   She testified that the men shot Kelly in the leg and also shot her dog, and that “there was blood everywhere.”   The police were not contacted regarding this incident, and no police report was filed.

The jury found Villa guilty of all three charges—aggravated assault on a public servant and possession with the intent to deliver cocaine and methamphetamine—and assessed the punishment at forty-five years in prison for the aggravated assault conviction, and twenty years in prison for each of the possession-with-intent deliver convictions.


Aggravated Assault on a Public Servant

In her first issue, Villa argues the evidence is legally insufficient to support the conviction for aggravated assault on a public servant.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential element of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   We defer to the jury's credibility and weight determinations because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326.

The indictment alleged that Villa committed aggravated assault against a public servant by intentionally, knowingly or recklessly shooting Marshall, who Villa knew was a public servant, while Marshall was engaged in the lawful discharge of an official duty, and using or exhibiting a deadly weapon, to-wit, a firearm, during the commission of the assault.   Aggravated assault is a first-degree felony if committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.   Tex. Penal Code Ann. § 22.02(b)(2)(B) (West 2011).   The actor is presumed to have known the assaulted person was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant.   Id. § 22.02(c).  Viewing the evidence under the appropriate standard, we conclude a rational trier of fact could have found beyond a reasonable doubt that Villa knew Marshall was a public servant.   The evidence showed that all of the officers wore uniforms emblazoned with the word POLICE in large capital letters, and that officers repeatedly identified themselves as “police” from the beginning of the operation.   Smith and Houston testified that they identified themselves as police officers as soon as they started to breach Villa's bedroom window, and they continued to identify themselves as police officers.   Both officers also testified that Villa disobeyed their commands, “rolling” out of their view.   Several witnesses noted a delay between the deployment of the “flash-bang” devices and the sound of the gunshot, indicating that the gunshot was not an instantaneous event.   The South Hollywood Avenue residence was equipped with a sophisticated infrared video surveillance system, with cameras positioned in various locations around the exterior of the home, and live-feed television monitors inside the home.   One camera showed the area just outside of the window of the master bedroom, where appellant was located when the SWAT team entered the home, and there was a large live-feed television monitor in the bedroom.   O'Pry testified that one “could actually look and see who was outside by watching this live feed.”   Considering all of the evidence under the appropriate standard, we conclude the evidence supports the jury's verdict.   We overrule Villa's first issue.

Search Warrant Affidavit

In her second issue, Villa argues the trial court improperly admitted evidence that was obtained as a result of the written search warrant, because the affidavit supporting the warrant insufficiently demonstrated probable cause.

When reviewing the magistrate's decision to issue a warrant, we “apply a highly deferential standard in keeping with the constitutional preference for a warrant.”  Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App.2007) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).   Provided the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the probable cause determination.  Rodriguez, 232 S.W.3d at 61;  Hughes v. State, 334 S.W.3d 379, 385 (Tex.App.—Amarillo 2011, no pet.).   The reviewing court should interpret the affidavit in a common sense and realistic as opposed to a “hyper-technical” manner.   See Rodriguez, 232 S.W.3d at 61;  Hughes, 334 S.W.3d at 385.   The “ ‘substantial basis' standard of review ‘does not mean the reviewing court should be a rubber stamp but does mean that the magistrate's decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.’ ”  Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App.2010) (quoting W. LaFave, Search and Seizure:  A Treatise on the Fourth Amendment § 11.7(c) at 452 (4th ed.   2004 & Supp.2009–2010)).

The twenty page search warrant affidavit details several years of narcotics and narcotics-related activity that occurred at various properties owned or controlled by several individuals, including Clayton Sharpless.   Paragraph twenty of the affidavit, for example, details information provided by a “cooperating individual,” “CI# 4,” described as “a member of large scale money laundering and drug organization” who had been arrested for a probation violation.   According to the affidavit, “CI# 4” stated that Sharpless once lived at 5215 Fitchberg, Dallas, Texas, “and ran the drugs out of the house.”   The CI “started purchasing methamphetamine straight from SHARPLESS from 1996 through August 2007,” paying $1,000 to $1,100 an ounce.   The CI “obtained an ounce of methamphetamine on average once a week,” and in the summer of 2006 “the amounts increased to a half a pound a week and there were times CI# 4 would get a pound of methamphetamine.”

The CI last saw Sharpless on August 22, 2007, at Sharpless's residence located at 1417 Bogarte, Grand Prairie, Texas, where Sharpless had kept “methamphetamine in a canister.”   The CI also stated that Sharpless “was keeping only small amounts of methamphetamine” at the Bogarte residence because Sharpless's wife had been “arrested on a possession case,” and that since June of 2006 Sharpless kept “most of his methamphetamine” at a house located at 505 Alva, Grand Prairie, Texas.   The CI indicated that he had “been to this location on several occasions to purchase methamphetamine from SHARPLESS and ha [d] seen SHARPLESS with a large salad[-]type bowl full of methamphetamine.”   The affidavit further stated that “SHARPLESS keeps his drug ledgers on him or near him at all time [sic] to include the residences listed above.”   Furthermore, according to the CI, the recent arrest of Sharpless's “right hand man” had caused Sharpless to move from the Bogarte residence to the house at 1110 South Hollywood Avenue because the Bogarte residence had become “too hot.”

These facts amply demonstrate a substantial basis for the magistrate's conclusion that probable cause existed to issue the warrant.   As a result, the trial court did not abuse its discretion by overruling defense counsel's objections regarding the sufficiency of the search warrant affidavit or the admissibility of the subsequently obtained evidence.   We overrule Villa's second issue.

Jury Argument

In her third issue, Villa argues the trial court erred by denying her request to instruct the jury to disregard “the improper jury argument of the prosecutor during the guilt/innocence stage of the trial.”   In her fourth issue, Villa argues the trial court erred by denying her motion for mistrial “after the improper jury argument of the prosecutor in the guilt/innocence stage of the trial.”

We review a trial court's denial of a motion for mistrial for an abuse of discretion and uphold the trial court's ruling if it was within the zone of reasonable disagreement.  Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007).   A mistrial is required only in extreme circumstances, where the prejudice is incurable.  Id. “A mistrial is the trial court's remedy for improper conduct that is ‘so prejudicial that expenditure of further time and expense would be wasteful and futile.’ ”  Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999)).   Proper jury argument generally falls within one of four areas:  (1) summation of the evidence;  (2) reasonable deduction from the evidence;  (3) answer to an argument of opposing counsel;  and (4) plea for law enforcement.  Brown v. State, 270 S.W.3d 564, 570 (Tex.Crim.App.2008).   “Improper references to facts that are neither in evidence nor inferable from the evidence are generally designed to arouse the passion and prejudice of the jury.”  Freeman v. State, 340 S.W.3d 717, 728 (Tex.Crim.App.2011).   When facts not supported by the record are interjected into argument, “such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper.”  Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999).   The remarks “must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.”  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000).

When determining whether improper jury argument warrants a mistrial, we balance three factors:  (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks);  (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge);  and (3) the certainty of the conviction absent the misconduct (the strength of the evidence supporting the conviction).  Berry v. State, 233 S.W.3d 847, 858–59 (Tex.Crim.App.2007);  Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998).

Villa's third issue is based on the following portion of the prosecutor's closing argument, which was delivered during the guilt-innocence phase of the trial:

But nevertheless, she's on that floor, and that shot isn't in an instant.   And how do you know that, folks?   How do you know the time went on—that the commands of the Dallas police, show us you hands, ‘Dallas Police, Dallas Police,’ how do you know it went on so long?   As Matt Smith and Tim Houston tell you, with him looking for a gun with his hands, going up and down, how do you know it went on so long?   Because why else would Lieutenant Carlton Marshall have gone to that window?   And that's just good common sense right there.   That's what tells you that it went on so long, just like the Lieutenant told you.   Something was going wrong.   Something would had to—something would have had to have been desperately wrong, an urgency, a necessity for me to—

Defense counsel immediately objected to these remarks as “completely outside the record” and “pure conjecture.”   The trial court sustained the objection but denied counsel's request that the jury be instructed to disregard the prosecutor's statements.

The prosecutor's argument was not improper.   Marshall testified:

knowing myself and my career, I would not deviate from the plan unless something brought my attention that had to be done.   And so, you know, there was something going on with the port and cover team, and I don't know what it was that caused me to deviate from the plan, I guess to assist them, and you know, I got shot.

Marshall's testimony suggested he would not have been at the master bedroom window unless unforeseen circumstances required him to deviate from the plan.   But the prosecutor did not argue Marshall said that, only that “something would have had to have been desperately wrong, an urgency, a necessity,” for Marshall to deviate from the plan.   The prosecutor's remarks were reasonable deductions from the evidence.   We also note that the prosecutor's remarks could be viewed as an answer to defense counsel's earlier suggestion in his closing argument that the events of that October morning were instantaneous:  “So we're talking about somebody who is dead asleep and all of a sudden she's awoken with the sound of grenades going off.”   The trial court did not err by refusing to instruct the jury to disregard the prosecutor's remarks.

Turning to Villa's fourth issue, her contention is based on a comment made by the prosecutor later in his closing argument during the guilt-innocence phase of the trial.   The relevant portion of the record reads as follows:

[PROSECUTOR:]․  The verdict of guilty tells them enough is enough.   I'm tired of this.   This isn't right.   That's not going to surprise anybody.   Your verdict of not guilty would send a message, too, because in order for you to find her not guilty, folks, you're going to have to say that you believe her, that you believe everything she told you.   Before you can do that, you've got to say you believe her.

[DEFENSE COUNSEL]:  Judge, I'm going to object.   That's a misstatement of the law.   The State's required to disprove self-defense.   They're trying to put a burden on the Defendant that does not exist.

THE COURT:  Sustained.

[DEFENSE COUNSEL]:  That's improper argument.   I'm going to ask the jury be instructed that last comment is not the law, that they're not required to believe it.   The State is required to disprove it.

THE COURT:  The jury will disregard the last statement.

[DEFENSE COUNSEL]:  I ask for a mistrial at this time for continuing to misstate the law, Your Honor.

THE COURT:  Denied.

Applying the relevant factors, we first note that the prosecutor's statement was a small part of a lengthy and otherwise proper argument.   The statement was brief and the record does not reflect a flagrant disregard for the bounds of proper jury argument.   Concerning the second factor, the trial court promptly sustained the objection and instructed the jury to disregard the complained-of statement, and we presume the jury followed that instruction.   See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998).   Furthermore, after the trial court instructed the jury to disregard the statement, the State did not refer to it again, did not attempt to highlight it, and did not make further use of it.   Lastly, looking to the certainty of the conviction absent the misconduct, the evidence against Villa was substantial.   Given the evidence presented, the jury would almost surely have convicted Villa regardless of the prosecutor's brief comment.   Considering the relevant factors, we therefore do not believe the trial court abused its discretion by denying Villa's request for a mistrial.   We overrule Villa's third and fourth issues.

Penal Code Section 9.32(b)(3)

In her fifth issue, Villa argues the trial court erred by overruling her objection to the part of the guilt-innocence charge in the aggravated assault on a public servant case that instructed the jury that the section 9.32(b)(3) presumption of reasonableness does not apply if it is shown the defendant was engaged in criminal activity “at the time force was used.”

Page six of the jury charge in the aggravated assault on a public servant case instructed the jury that Texas Penal Code § 9.32(b)(3)'s presumption of reasonableness applies where the actor “was not otherwise engaged in criminal activity, other than a Class C misdemeanor at the time force was used.”   See Tex. Penal Code Ann. § 9.32(b)(3) (West Supp.2011).   Defense counsel objected to this language as “unconstitutionally vague” for failing “to set out the actual definition of the—what it means in stating ‘at the time that the force was used,’ ” and argued “the law as it's written is unconstitutional.”

Statutory construction is a question of law, and our review is de novo.   Ramos v. State, 303 S.W.3d 302, 306 (Tex.Crim.App.2009);  Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008).   When construing a statutory provision, our constitutional obligation is to attempt to discern the fair, objective meaning of that provision at the time of its enactment.  Ramos, 303 S.W.3d at 306;

Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).   If we conclude that the meaning of the statutory provision in question is plain, then we give effect to that plain meaning, so long as it does not lead to an absurd result.  Ramos, 303 S.W.3d at 307.   Statutory terms not legislatively defined are generally construed as common usage allows, but terms that have an acquired technical meaning are generally construed in their technical sense.   Id. As we understand her complaint, Villa argues that the section 9.32(b)(3) phrase “at the time the force was used” is unconstitutionally vague.   But we find nothing remotely vague about the phrase, either generally or in a statutory context.   Giving the statutory provision the effect indicated by its plain meaning, the aforementioned phrase refers to the time that the actor used the force in question.   Likewise, in the present case, the phrase “at the time force was used” referred to the time that Villa shot Marshall.   Thus, the trial court did not err by overruling defense counsel's objection.   We overrule Villa's fifth issue.

Possession with the Intent to Deliver Controlled Substances

In her sixth and seventh issues, Villa argues the evidence is insufficient to support the convictions for possession with the intent to deliver methamphetamine and cocaine.

A person commits an offense if he knowingly possesses with intent to deliver a controlled substance, such as methamphetamine or cocaine.   See Tex. Health & Safety Code Ann. §§ 481.112(a), 481.102(3)(D) & (6) (West 2010).   To support a conviction for unlawfully possessing narcotics, the State must prove that (1) the accused exercised actual care, custody, control, or management over the substance, and (2) the accused knew that the matter possessed was contraband.   Id. § 481.002(38);  Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006).   The evidence may be direct or circumstantial.  Evans, 202 S.W.3d at 162.   But the evidence must establish that the accused's connection with the drug was more than fortuitous.   Id.

If the accused was not in exclusive possession of the place where the contraband was found, the State must offer additional independent facts and circumstances linking her to the contraband.5  Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005);  Taylor v. State, 106 S.W.3d 827, 830–31 (Tex.App.—Dallas 2003, no pet.).   Possible links include:  (1) the defendant's presence when a search is conducted;  (2) whether the contraband was in plain view;  (3) the defendant's proximity to and the accessibility of the contraband;  (4) whether the defendant was under the influence of narcotics when arrested;  (5) whether the defendant possessed other contraband or narcotics when arrested;  (6) whether the defendant made incriminating statements when arrested;  (7) whether the defendant attempted to flee;  (8) whether the defendant made furtive gestures;  (9) whether there was an odor of contraband;  (10) whether other contraband or drug paraphernalia were present;  (11) whether the defendant owned or had the right to possess the place where the drugs were found;  (12) whether the place w Patterson v. State here the drugs were found was enclosed;  (13) whether the defendant was found with a large amount of cash;  and (14) whether the conduct of the defendant indicated a consciousness of guilt.  Evans, 202 S.W.3d at 162 n.12. It is the logical force of the evidence, and not the number of links, that supports a jury's verdict.   See id. at 166;  Taylor, 106 S.W.3d at 831.

Intent to deliver a controlled substance may be proven by circumstantial evidence.  Patterson v. State, 138 S.W.3d 643, 649 (Tex.App.—Dallas 2004, no pet.).   An oral expression of intent is not required.  Moreno v. State, 195 S.W.3d 321, 326 (Tex.App.—Houston [14th Dist.] 2006, pet. ref'd).   Intent can also be inferred from the acts, words, and conduct of the accused.  Id. at 326 (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995)).

In this case, the evidence showed that Villa lived at the residence where the drugs were found, and that SWAT officers found cocaine and methamphetamine throughout the residence, including the master bedroom and closet.   Villa was in the master bedroom when the SWAT officers entered the home.   Witnesses testified that when Villa saw the SWAT officers, she disobeyed their commands and “rolled” out of their view.   She shot one of the officers in the neck with a firearm.   Other testimony showed that Villa regularly dealt drugs out of the residence and that she sold methamphetamine from the residence on the night before the SWAT operation.   A large amount of cash was found in the master bedroom, hidden in a “Crown Royal bag.”   Electronic scales, plastic “baggies,” ledgers, notes, and other bookkeeping-related documents were also found in the residence.   One note that Villa wrote to Sharpless contained details of a drug transaction that Villa had conducted.   A significant quantity of firearms and ammunition were found in the residence, including a handgun on the floor of the master bedroom, another handgun on the bed, and a “mini Uzi” under the bed.   Sophisticated infrared video surveillance cameras were positioned in various locations on the exterior of the home, and live-feed television monitors were located inside the home, including the master bedroom.

It was the jury's role, as the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses' credibility.   Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that Villa knowingly possessed methamphetamine and cocaine with the intent to deliver.   Thus, the evidence is sufficient to support the convictions.   See Brooks, 323 S.W.3d at 895;  Evans, 202 S.W.3d 158 at 166.   We overrule Villa's sixth and seventh issues.

Inmate Trust Account

In her eighth, ninth, and tenth issues, Villa argues the trial court's order to the Texas Department of Criminal Justice to withdraw money from Villa's inmate trust fund account and forward the funds to the district clerk to pay for court costs, fees, and/or fines assessed in the above cases, violated Villa's due process rights, the Texas Government Code, and was based on legally insufficient evidence.

Contemporaneously with the judgments signed in the above cases on May 5, 2010, the trial court signed three orders pursuant to Tex. Gov't Code Ann. § 501.014 (West Supp.2011) stating that appellant, who is in the custody of Texas Department of Criminal Justice, Institutional Division, had “incurred court costs, fees and/or fines in the 363rd Judicial District Court of Dallas County, Texas,” in the amount of $10,256 in appeal 05–10–00584–CR, and $306 in appeals 05–10–00585–CR and 05–10–00586–CR.   The court's orders, which are identical in all three cases, direct the following payments from Villa's inmate trust account:

Pay an initial amount equal to the lesser of:

1. 20% of the preceding six months' deposits in the inmate's trust account;  or

2.  The total amount of court fees and costs.

In each month following the month in which the initial payment is made, the inmate shall pay an amount equal to the lesser of:

1. 10% of that month's deposit to the inmate trust account;  or

2.  The total amount of the court fees and costs that remain unpaid.

Payments shall continue until the total amount of court fees and costs are paid, or until the inmate is released from confinement.

Appellant attacks the validity of the garnishment on multiple grounds, but we lack jurisdiction over her complaints.   Appellant's notices of appeal vested this Court with jurisdiction to review the judgments of conviction and sentences assessed in the criminal proceeding.   See Stansberry v. State, 239 S.W.3d 260, 263 (Tex.Crim.App.2007);  Tex.R.App. P. 25.2 (governing right to and perfection of appeal in criminal case).   They did not, however, vest this Court with jurisdiction over the trial court's withdrawal orders.   The withdrawal orders are not criminal matters;  they stem from a civil proceeding that is separate and independent from the judgments that assessed Villa's convictions and sentences.   See Harrell v. State, 286 S.W.3d 315, 317–19 (Tex.2009);  In re Johnson, 280 S.W.3d 866, 873–74 (Tex.Crim.App.2008);  In re Pannell, 283 S.W.3d 31, 34–35 (Tex.App.—Fort Worth 2009, no pet.);   Reed v. State, 269 S.W.3d 619, 622, 624 (Tex.App.—San Antonio 2008, no pet.).6  Only a separate civil appeal from the withdrawal orders would give this Court jurisdiction over those matters.   See, e.g., Pannell, 283 S.W.3d at 34–35;  Reed, 269 S.W.3d at 623–24;  Abdullah v. State, 211 S.W.3d 938, 940–41 (Tex.App.—Texarkana 2007, no pet.).   Because Villa did not file such an appeal, she failed to invoke our jurisdiction to consider issues pertaining to the withdrawal orders.   We therefore dismiss her eighth, ninth, and tenth issues.

We affirm the trial court's judgments.


FN1. Trial court cause number F07–58086–VW;  appeal number 05–10–00584–CR..  FN1. Trial court cause number F07–58086–VW;  appeal number 05–10–00584–CR.

FN2. Trial court cause number F09–01431–XW;  appeal number 05–10–00585–CR..  FN2. Trial court cause number F09–01431–XW;  appeal number 05–10–00585–CR.

FN3. Trial court cause number F09–01432–XW;  appeal number 05–10–00586–CR..  FN3. Trial court cause number F09–01432–XW;  appeal number 05–10–00586–CR.

FN4. According to Gordon, Sharpless had “supposedly shot his leg off with a AK–47” rifle, and this was why a SWAT team was assigned to execute the warrant..  FN4. According to Gordon, Sharpless had “supposedly shot his leg off with a AK–47” rifle, and this was why a SWAT team was assigned to execute the warrant.

FN5. Previously, the Texas Court of Criminal Appeals referred to this as the “affirmative links” rule.   But in Evans v. State, the court stated that “we recognize that ‘affirmative’ adds nothing to the plain meaning of ‘link,’ ” and that, “[h]enceforth, we will use only ‘link’ so that it is clear that evidence of drug possession is judged by the same standard as all other evidence.”   See Evans, 202 S.W.3d at 161 n.9..  FN5. Previously, the Texas Court of Criminal Appeals referred to this as the “affirmative links” rule.   But in Evans v. State, the court stated that “we recognize that ‘affirmative’ adds nothing to the plain meaning of ‘link,’ ” and that, “[h]enceforth, we will use only ‘link’ so that it is clear that evidence of drug possession is judged by the same standard as all other evidence.”   See Evans, 202 S.W.3d at 161 n.9.

FN6. The Harrell court also noted that [w]hile we categorize withdrawal orders as civil, a criminal district court has jurisdiction to issue such orders and to hear any inmate challenges to them.  Harrell, 286 S.W.3d at 321 n.30..  FN6. The Harrell court also noted that [w]hile we categorize withdrawal orders as civil, a criminal district court has jurisdiction to issue such orders and to hear any inmate challenges to them.  Harrell, 286 S.W.3d at 321 n.30.


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