PD-1176-15, PD-1177-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/7/2015 11:10:50 AM Accepted 10/8/2015 2:33:30 PM ABEL ACOSTA NOS. PD-1176-15 & PD-1177-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN _________________________
MALCOLM MCCLENON, Petitioner/Appellant
v.
THE STATE OF TEXAS, Respondent/Appellee _________________________
On Appeal in Cause Nos. F12-54585-W & F12-54586-W from the 363rd Judicial District Court Of Dallas County, Texas And on Petition for Discretionary Review from the Fifth District of Texas at Dallas In Cause Nos. 05-14-00833-CR & 05-14-00834-CR _________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________
Counsel of Record:
Lynn Richardson Kathleen A. Walsh Chief Public Defender Assistant Public Defender State Bar Number: 20802200 Katherine A. Drew 133 N. Riverfront Blvd., LB 2 Chief, Appellate Division Dallas, Texas 75207-399 (214) 653-3550 (telephone) (214) 653-3539 (fax) kwalsh@dallascounty.org
October 8, 2015 LIST OF PARTIES
TRIAL COURT JUDGE Andrew J. Kupper, Presiding Judge by assignemnt
APPELLANT Malcolm McClenon
APPELLANT’S ATTORNEYS AT TRIAL Matthew Arnold, State Bar No. 00789129 3500 Maple Avenue, Suite 400 Dallas, TX 75219
ON APPEAL Kathleen A. Walsh, State Bar No. 20802200 Assistant Public Defender Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399
STATE’S ATTORNEYS AT TRIAL Dimitri Anagnostis, State Bar No. 24066767 Andrew Novak, State Bar No. 24048695
ON APPEAL G. Brian Garrison, State Bar No. 24065276
Assistant District Attorneys Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
ii TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv STATEMENT REGARDING ORAL ARGUMENT ............................................... 1 STATEMENT OF THE CASE .................................................................................. 1 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1 QUESTIONS FOR REVIEW ................................................................................... 2 QUESTION NO. 1
Whether the Court of Appeals applied an improper standard of review when it determined that the evidence was sufficient to affirmatively link Appellant to the marijuana without considering all of the evidence in its analysis.
QUESTION NO. 2
Whether the Court of Appeals applied an improper standard of review when it determined that the evidence was sufficient to affirmatively link Appellant to the firearm without considering all of the evidence in its analysis.
ARGUMENT ............................................................................................................. 2 The Court of Appeals' Opinion pertaining to the evidence linking Appellant to the marijuana .............................................................................. 3 The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to the firearm ................................................................................... 6 Conclusion ....................................................................................................... 7 PRAYER FOR RELIEF ............................................................................................ 9 CERTIFICATE OF SERVICE .................................................................................. 9 CERTIFICATE OF COMPLIANCE ....................................................................... 10 APPENDIX
iii INDEX OF AUTHORITIES
Cases Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................. 2 Jackson v.Virginia, 443 U.S. 307 (1979) ........................................................................................... 2, 3 McClenon v. State, Nos. 05-14-00833-CR, 05-14-00834-CR, 2015 Tex. App. LEXIS 8394 (Tex. App.—Dallas August 11, 2015) (not designated for publication) ......passim Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) ............................................................... 3 Wirth v. State, 361 S.W.3d 694 (Tex. Crim. App. 2012) ........................................................... 3, 8
iv TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Malcolm McClenon, Petitioner herein and Appellant before
the Court of Appeals, and respectfully submits this Petition for Discretionary
Review.
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the facts of the case and the issues raised are such
that oral argument will not significantly aid this Court’s consideration and
disposition of this Petition.
STATEMENT OF THE CASE
A jury convicted Appellant of the offense of possession of marijuana in the
amount of fifty pounds or less but more than five pounds enhanced by a prior
conviction for aggravated assault, and the offense of unlawful possession of a
firearm by a felon and assessed punishment at 15 years’ imprisonment in the
marijuana case and 10 years’ imprisonment in the firearm case. (RR5: 29-30, 70-
71; CR: 68; CR1: 69). The jury also found that Appellant used or exhibited a
deadly weapon in the marijuana case. (RR5: 30; CR: 70-71).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On August 11, 2015, in a memorandum opinion, the Court of Appeals for
the Fifth District of Texas affirmed Appellant’s conviction. McClenon v. State, Nos. 05-14-00833-CR, 05-14-00834-CR-CR, 2015 Tex. App. LEXIS 8394 (Tex.
App.—Dallas August 11, 2015) (not designated for publication). (See Appendix).
No motion for rehearing was filed. This Petition is timely if filed on or before
October 12, 2015.1
QUESTIONS FOR REVIEW
QUESTION NO. 1
Whether the Court of Appeals applied an improper standard of review when it determined that the evidence was sufficient to affirmatively link Appellant to the marijuana without considering all of the evidence in its analysis.
Whether the Court of Appeals applied an improper standard of review when it determined that the evidence was sufficient to affirmatively link Appellant to the firearm without considering all of the evidence in its analysis.
ARGUMENT
While an appellate court reviews the evidence in the light most favorable to
the verdict, that court must review all of the evidence to determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Evaluating the evidence in the light
1 Appellant’s motion for extension of time in which to file the Petition for Discretionary Review was granted by this Court on September 14, 2015. 2 most favorable to the verdict is not the same as looking only to the State’s evidence
of guilt and ignoring the defense evidence. An appellate court cannot only
emphasize evidence that favors it’s holding while ignoring controverting
testimony. See Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012)
(finding that a court of appeals incorrectly applied the Jackson standard by
employing a “divide-and-conquer” approach which failed to consider all of the
evidence); Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012) (reversing
a court of appeals for selectively emphasizing “snippets of the record that
ostensibly favored its holding” while ignoring controverting testimony).
In rejecting Appellant’s challenge to the sufficiency of the evidence to
affirmatively link him to the marijuana and firearm found hidden in the house in
which Appellant had been staying, it is clear from the opinion that the Fifth Court
of Appeals applied an improper standard of review when it considered only the
evidence which tended to support the verdict and did not discuss or analyze the
controverting evidence which refuted any connection between Appellant and the
contraband.
The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to the marijuana.
Although the court of appeals properly states that Appellant was present
when the search was conducted and that marijuana was found hidden beneath an
unfinished stairway in the back of the house and in a hidden compartment in the 3 dining room, the court failed to consider and discuss the fact that the evidence also
showed that there were two other occupants in the house at the time of the search
(RR3: 42-43); that Appellant did not have the exclusive custody and control of the
house, nor any ownership interest in the house (RR3: 44-45, 49-50; RR4: 22-25,
32, 87-88); that the owner of the house, along with other workers, had complete
access to the house while Appellant was staying there (RR4: 24, 87-88); or that the
officers failed to find any personal items tying Appellant to the house. (RR3: 156-
57). McClenon, 2015 Tex. App. LEXIS 8394 at *10-11.The court of appeals also
failed to consider and discuss the fact that the marijuana behind the stairs could not
be seen unless someone was going up the stairs or the fact that Appellant would
have never gone up the stairs because the stairs were still under construction and
did not lead to anything. (RR3: 90-91). Id. Although the court appears to consider
the fact that the marijuana found in the dining room was in a hidden compartment
in the wall which could not be seen by a person walking through the room, the
court discounts the significance of this evidence by referring to testimony from the
officers that the house as “pretty small” and the marijuana was hidden in such as to
be accessible only to one who exercised control over the house without
acknowledging the fact that Appellant did not have the exclusive custody and
control of the house. Id.
4 In its opinion, the court of appeals points to the officer’s testimony regarding
the odor of marijuana in the house and the fact that the marijuana found was a
high-grade variety that is more expensive, stronger, and more pungent than
“regular” marijuana, thus giving off a distinct odor which someone living in the
house would have been aware without giving any consideration to the fact that the
evidence also showed that Appellant was an admitted “pothead” who smoked
regularly and thus would not consider the odor of marijuana in the house to be
significant or indicative of anything other than his own use. (RR3: 48; RR4: 35,
37-39, 49-50, 57, 65, 67, 69-73, 81). Id.
In its opinion, the court of appeals refers to the fact that the officers found a
large number of baggies and a scale, suggesting that the marijuana was being
broken down, packaged, and sold out of the house; however, the court did not
consider or discuss the fact that the plastic baggies were found strewn about in a
closed closet where there was no marijuana or identifying information found, or
the fact that one of the officers testified that someone who was not a police officer
may have placed no significance on the empty bags in the closet and just thought
that someone was saving bags. (RR3: 180-81). Nor did the court consider or
discuss the fact that there was no specific testimony regarding where the scale was
found and whether it was found with the baggies. (RR3: 93, 116-17). Id. at *11.
5 In its opinion, the court of appeals refers to the fact that $975 in cash was
found in various denominations during the search but does not consider or discuss
the fact that no officer could testify where the money had been found. (RR3: 153-
55). Id. at *11-12.
And finally in its opinion, the court of appeals refers to the fact that text
messages indicative of drug transactions and photos of money and a gun were
found on the two cell phones seized from the residence without considering or
discussing the fact the photos and text messages on the phones were not connected
to Appellant in any way but were connected to Dominque Sharper, one of the other
occupants present in the residence at the time of the search. (RR3: 164-72, 174-75;
State Exhibits 45 thru 62). Id. at *9.
The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to the firearm.
In its analysis of the evidence pertaining to the firearm, the court of appeals
correctly refers to the fact that the gun was found along with some of the marijuana
in the hidden compartment in the dining room and the officer’s testimony that a
person walking through the dining room would not have known about the hidden
compartment but discounts such evidence by referring to the officer’s testimony
regarding the strong, pungent odor that would have been apparent to anyone in the
house and the fact that Appellant expressed his familiarity with the type of
marijuana seized in this case. McClenon, 2015 Tex. App. LEXIS 8394 at *14-15. 6 The court also refers to Kelly’s testimony that about a week before the arrest, he
went to the house and saw a firearm in the back of the house where the remodeling
work was being done. Id. at *15. What the court fails to consider or discuss in its
analysis is the fact that other people not only had access to the house but were
present in the house both when the firearm was found by the officers, and when
Kelly saw a gun in the house a week prior to the arrest. The court also fails to
consider or discuss the fact that no fingerprints were taken from the gun and no
fingerprints were taken from the compartment in the wall in which the gun was
found. (RR3: 131-32). And finally, the court fails to consider or discuss the fact
that the only evidence directly linking anyone to the firearm were the pictures
found on Sharper’s phone showing Sharper holding a gun and money or Officer
Wagner’s testimony that there was a pretty clear connection between Sharper and
the gun since the photo of the gun on Sharper’s phone appeared to be the same gun
that was seized from the residence. (RR4: 14).
Conclusion.
As set forth above, there was a significant amount of evidence which the
Court of Appeals failed to consider or discuss in its sufficiency review. Proper
consideration of this evidence would indicate that the State failed to present
sufficient evidence to affirmatively link Appellant to either the marijuana or the
firearm found hidden in the house. Appellant’s mere presence in the house does
7 not link him to contraband found hidden in its bowels. While it would be
reasonable to infer that Appellant had some connection to the house as a tenant
because he had been staying there for the past two and half weeks, there is also
evidence that other people were connected to the house, including the owner and
other workers who were working on the remodeling project in the house. Even
when Appellant was arrested, he was not alone at the house; both Sharper and
Kelly were there with him. Furthermore, the only evidence linking anyone to either
the drugs or the firearm was unnequivocal evidence from Sharper’s own cell
phones showing Sharper to be the one in possession of the contraband.
Consequently, this Court should conduct an independent review of the sufficiency
of the evidence in these cases. Wirth, 361 S.W.3d at 698. In the alternative, this
Court should remand this case to the Court of Appeals with instructions to conduct
a proper sufficiency review.
8 PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this petition
and, upon review, reverse the decision of the Court of Appeals.
Respectfully submitted,
/s/ Kathleen A. Walsh Kathleen A. Walsh Lynn Richardson Assistant Public Defender Chief Public Defender State Bar No. 20802200 Dallas County Dallas County Public Defender’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, TX. 75207-4399 (214) 653-3550 (telephone) (214) 653-3539 (fax)
CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of October, 2015, a true copy of the
foregoing petition for discretionary review was served by electronic delivery to
the Appellate Division2 of the Dallas County Criminal District Attorney’s Office
at DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to
Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov.
/s/ Kathleen A. Walsh Kathleen A. Walsh
2 G. Brian Garrison, the original State’s attorney on appeal, is no longer employed by the Dallas County District Attorney’s Office. 9 CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in this document, which is prepared in
Microsoft Word 2010, is 2,470.
10 APPENDIX fi·LexisNexis· No Shepard's Signa)TM As of: October 6, 2015 12:42 PM EDT
Mcclenon v. State Court of Appeals of Texas, Fifth District, Dallas August 11, 2015, Opinion Filed No. 05- 14-00833-CR, No. 05- 14-00834-CR
Repor ter 2015 Tex. App. LEXJS 8394
MALCOLM MCCLENON, Appellant v. THE STATE OF Judgment affirmed. TEXAS, Appellee LexisNexis® Headnotes Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR C ITATION OF Criminal Law & Procedure > ... > Standards of Review > UNPUBLISHED OPINIONS. Substantial Evidence > Sufficiency of Evidence
Prior Hist ory: [* I ] On Appeal from the 363rd Judicial HNI In reviewing the sufficiency of the evidence, the District Court, Dallas County, Texas. Trial Court Cause Nos. appellate court views all the evidence in the light most Fl2-54585-W & F12-54586-W. favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The appellate court Core Terms assumes the fact finder resolved conflicts in testimony, weighed the evidence, and drew reasonable inferences in a marijuana, contraband, deadly weapon, drugs, firearm, door, manner that supports the verdict. The appellate court also gun, weapon, proximity, bag, exhibited, phone, possession defers to the trier of fact's determination of witness of marijuana, narcotics, factors, pounds, odor, hidden credibility and the weight to be given their testimony. compartment, evidence show, arrested, custody, handgun, knocked, bills, shelf Criminal Law & Procedure > ... > Possession > Simple Possession > Elements
Case Summary Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Definitions
Overview HN2 To establish unlawful possession of a controlled HOLDINGS: [!]-The evidence showed that defendant was substance, the State must prove that appellant exercised present when the search was conducted and suggested the control, management, or care of the substance, and that he marijuana was being broken down, packaged, and sold out knew the matter possessed was contraband. The evidence of the house, and the large number of $20 bills found by may be either direct or circumstantial, but must show officers was consistent with someone dealing drugs on a appellant's connection to the drugs was more than just $20-a-gram level; [2]-The evidence was sufficient for a fortuitous. Although appellant's mere presence where drugs rational jury to find beyond a reasonable doubt that defendant are found, without more, is insufficient to establish exercised care, custody, control, or management of the possession, appellant's proximity to the drugs combined firearm and the jury was not required to believe defendant's with other evidence can prove possession beyond a testimony that he had no idea to whom the handgun reasonable doubt. belonged; [3]-The evidence showed that the handgun, which had been reported stolen, was loaded and ready to be Criminal Law & Procedure > ... > Possession > Simple fired. Possession > Elements
Criminal Law & Procedure > Criminal Offenses > Controlled O utcome Substances > Definitions 2015 Tex. App. LEXIS 8394, *I
H N3 A nonexclusive list of factors that can be sufficient "logical force" or degree to which the factors, alone or in either singly or in combination, to establish possession of combination, tend to link the accused to the weapon. Factors contraband include: (I) presence when search is conducted; that may establish the link include (I) whether the contraband (2) whether the contraband is in plain view; (3) proximity to or weapon was in plain view or found on the accused; (2) and the accessibi lity of the contraband, (4) the accused the accused's proximity and accessibility to the weapon or being under the influence of narcotics when arrested; (5) contraband; (3) whether the accused owned or controlled possession of other contraband or narcotics when arrested; the place where the contraband or weapon was found; (4) (6) incriminating statements made by the accused when whether the accused made any incriminating statements; (5) arrested; (7) an attempt to flee; (8) furtive gestures; (9) an whether the accused tried to flee; and (6) whether the odor of contraband; (I 0) the presence of other contraband or accused made furtive gestures. drug paraphernalia; (11) whether the accused owned or had the right to possess the place where the drugs were found; Criminal Law & Procedure > Criminal Offenses >Weapons (12) whether the place where the drugs were found was Offenses > Definitions enclosed; (13) possession of a large amount of cash; (14) Criminal Law & Procedure > ... > Use of Weapons > conduct indicating a consciousness of guilt; (15) the quantity Commission of Another Crime > Elements of the contraband; and ( 16) whether the accused was the driver of the automobile in which the contraband was found. H N6 Tex. Code Crim. Proc. Ann. art. 42. 12. § 3g(a)(2) The number of factors linking a defendant to contraband is permits the entry of a deadly weapon finding when it is not as important as the logical force they create to support shown that a defendant used or exhibited a deadl.y weapon, an inference of knowing possession of contraband. or he was a party to the offense and knew that a deadly weapon would be used or exhibited. In the context of a Criminal Law & Procedure > Criminal Offenses > Weapons deadly weapon finding, the term "use" means any Offenses> Definitions employment of a deadly weapon, even simple possession, if that possession facilitates the associated felony. However, Criminal Law & Procedure > ... > Weapons Offenses > the term "exhibit'' requires a weapon to be consciously Possession of Weapons > General Overview shown, displayed or presented to be viewed. H N4 Possession means actual care, custody, control, or Criminal Law & Procedure > Criminal Offenses >Weapons management, Tex. Penal Code Ann. § J.07{a)(39) . As in Offenses > Definitions cases involving the possession of a controlled substance, when an individual is charged with the unlawful possession Criminal Law & Procedure > ... > Use of Weapons > of a firearm, the State must prove the accused (I) exercised Commission of Another Crime > Elements care, custody, control, or management over the firearm, and H N7 When reviewing the sufficiency of the evidence to (2) knew the object was a firearm. If the accused is not in support a deadly weapon finding, the issue is whether the exclusive possession of the area where the contraband or weapon was found to have facilitated the defendant's firearm is found, the evidence must link the accused to the possession and intended distribution of the drugs. The contraband or weapon. Regardless of whether the evidence defendant's proximity to the gun at the time of the search is used is direct or circumstantial, the State must establish that not dispositive. Likewise, ownership is not necessary to the accused's connection with the firearm was more than establish that a defendant used a deadly weapon i111 violation just fortuitous. Mere presence at the location where the of Tex. Code Crim. Proc. Ann. art. 42. 12. § 3g. Tihe focus is contraband is found is insufficient, by itself, to establish on the proximity of the guns to the drugs, not the proximity actual care, custody, or control of the contraband. But when of the guns to the defendant. The appellate court must combined with other links, either direct or circumstantial, determine whether the cumulative effect of the factors could presence or proximity may be sufficient to establish that have allowed a rational jury to determine that the defendant element beyond a reasonable doubt. used the weapons to protect the drugs and the proceeds therefrom. If the appellate court determines the State failed Criminal Law & Procedure > ... > Weapons Offenses > to show a defendant used a deadly weapon in the commission Possession of Weapons > General Overview of an offense, it may delete the deadly weapon finding. Criminal Law & Procedure > Criminal Offenses > Weapons Offenses> Definitions Counsel: For Appellants: Katherine Drew, Kathleen Walsh, Lynn Richardson, Dallas, TX. H NS There is no set formula to determine what links are sufficient and the number of links is not as important as the For Appellees: G. Brian Garrison, Susan Hawk, Dallas, TX.
Page 2 of 7 2015 Tex. App. LEXIS 8394, *I
Judges: Before Justices Fillmore, Myers, and Evans. reasonable doubt. Jackson v. Virginia. 443 U.S. 307. 313. 99 Opinion by Justice Myers. S. Ct. 2781. 61 L. Ed. 2d 560 (1979); Brooks v. State. 323 S. W.3d 893. 899 (Tex. Crim. App. 2010). We assume the fact Opinion by: LANA MYERS finder resolved conflicts in testimony, weighed the evidence, and drew reasonable inferences in a manner that supports Opinion the verdict. Clayton v. State. 235 S. W.3d 772. 778 (Tex. Crim. App. 2007). We also defer to the trier of fact's determination of witness credibility and the weight to be MEMORANDUM OPINION given [*3] their testimony. Brooks. 323 S. W.3d at 899. Opinion by Justice Myers HN2 To establish unlawful possession of a controlled Appellant Malcolm McCJendon was indicted for substance, the State must prove that appellant exercised intentionaEly and knowingly possessing marijuana in an control, management, or care of the substance, and that he amount of fifty pounds or Jess but more than five pounds. 1 knew the matter possessed was contraband. See Poindexter The State alleged appellant used or exhibited a deadly v. State. 153 S. W.3d 402. 405 (Tex. Crim. App. 2005). The weapon in the commission of the offense. Appellant also evidence may be either direct or circumstantial, but must was indicted for the unlawful possession of a firearm by a show appellant's connection to the drugs was more than just felon.2 Appellant pleaded not guilty to the charges and fortuitous. See Evans v. State. 202 S. W.3d 158. 161-62 (Tex. pleaded not true to the deadly weapon allegation. The jury Crim. App. 2006). Although appellant's mere presence found appellant guilty as charged, made an affirmative where drugs are found, without more, is insufficient to deadly weapon finding, and assessed punishment at fifteen establish possession, appellant's proximity to the drugs years' imprisonment in the marijuana case and ten years in combined with other evidence can prove possession beyond the firearm case. The trial court ordered the sentences to be a reasonable doubt. See id. at 162. served concurrently. In three issues, appellant argues the evidence is insufficient to support the convictions for HN3 A nonexclusive list of factors that can be sufficient either singly or in combination, to establish possession of possession of marijuana and possession of a firearm by a contraband include: (I) presence when search is conducted; felon, and that he used or exhibited a deadly weapon during (2) whether the contraband is in plain view; (3) proximity to the commission of the possession of marijuana offense. (".'2] and the accessibility of the contraband, (4) the accused We affirm .. being under the influence of narcotics when arrested; (5) possession of other contraband or narcotics whe:n arrested; D1scuss10N (6) incriminating statements made by the accused when arrested; (7) an attempt to flee; (8) furtive gestures; (9) an Possession of Marijuana odor of contraband; (I 0) the presence of other contraband or In his first issue, appellant contends the evidence is drug paraphernalia; [*4] ( 11) whether the accused owned or insufficient to support the conviction in 05- 14-00833-CR had the right to possess the place where the drugs were for possession of marijuana in the amount of fifty pounds or found; (12) whether the place where the drugs were found Jess but more than five pounds. He argues that he was not in was enclosed; (13) possession of a large amount of cash; close proximity to the drugs, nor is there evidence the drugs (14) conduct indicating a consciousness of guilt; (15) the were found in plain view while appellant was in the home, quantity of the contraband; and (16) whether the accused and that he did not have exclusive custody and control of the was the driver of the automobile in which the contraband house where the drugs were found. Appellant also argues was found. See Evans. 202 S. W.3d at 162 n. 12; McOuarters the other factors do not link him to the contraband. v. State. 58 S. W.3d 250. 259 (Tex. App.- Fort Worth 2001. pet. refd). The number of factors linking a defendant to HNI In reviewing the sufficiency of the evidence, we view contraband is not as important as the logical force they all the evidence in the light most favorable to the verdict and create to support an inference of knowing possession of determine whether any rational trier of fact could have contraband. Taylor v. State. 106 S. W.3d 827. 831 (Tex. found the essential elements of the offense beyond a App.- Dallas 2003. rw pet.).
Cause number 05-14-00833-CR; trial court cause number F12-54585-W. 2 Cause number 05-14-00834-CR; trial court cause number F12-54586-W.
Page 3 of 7 2015 Tex. App. LEXIS 8394, *4
The evidence in this case shows that at around 11 :30 a.m. on see the bags of marijuana, but they would be able to see April 17, 2012, Dallas Police Officer Daniel Foster and them if they were going up the stairs. Officer Wagner also several other officers conducted a "knock-and-talk" discovered a "cutout" with a shelf in the wall of the dining investigation at a duplex house located at 310 Cumberland room. The shelf was loose. When he picked up the shelf, Street, Dallas, Texas. The officers were part of a narcotics Officer Wagner found a hidden compartment containing team and their investigation was in response to a "drug more marijuana [*7] and a gun. The gun was ready to fire. complaint" the department had received. After Officer Officer Wagner testified that a person walking through the Foster knocked on the door, appellant opened the door room would not know the hidden compartment was there. "fairly quickly," exited, and closed it behind him. He was Officer Wagner also testified that they found a scale talking on a cell phone. The officers could smell the odor of containing marijuana residue and a large number of empty marijuana coming from inside the house. In response to bags that cou ld have been used to break the marijuana down Officer [*5] Foster's questions, appellant said he lived at the to sell it on the street. In the living room, officers found a location. After appellant stepped outside and shut the door, container inscribed with the phrase, "A friend with weed is another officer told Officer Foster he had seen someone run a friend indeed," and a Tupperware container with the word up and lock the door behind appellant. That officer, Chris "kush" on it. Another officer, Rebecca Barrios, testified that Wagner, testified that he had looked through the window she found mail with appellant's name on it. The mai l, which into the living room after appellant stepped outside and saw was found on a coffee table, was addressed to appellant at a man wearing a white I-shirt run to the front door and lock an address on Abrams Road, Dallas, Texas, and was dated it, grab a small bag from the floor area, and then run to the December 1, 2011. Officers found a Texas Department of rear of the residence. The bag was later recovered during the Criminal Justice, Parole Division, "electronic monitoring search and marijuana was found inside. program/daily curfew schedu le" that contained appellant's printed name, TDCJ number, and the same Abrams Road When Detective Foster asked appellant whether there were address. The schedule stated it was valid from May 12, 2011 any other people living in the house, appellant admitted until completed successfully. Officers also found a red cell there were other people in the house. Appellant knocked on phone and a black cell phone. the front door- he discovered it had been locked behind him- and two other people came out onto the porch area. A total of $975 in various denominations of currency was Appellant told Officer Foster he had been renting the house, found during the search: 35 $20 [*8] bills (totaling $700), living there for the last two or two and a half weeks, and that 15 $10 bills ($150), 15 $5 bills ($7 5), 40 $1 ($40), and 40 he was working on the house for the "manager," who lived quarters ($10). Officer Barrios testified that the large next door. Appellant told the officers the other two number of $20 bills was consistent with someone dealing individuals, Dominique Sharper and Michael Kelly, were drugs on a $20-a-gram level. Additionally, Michael Kelly, just visiting him. Appellant admitted they had been smoking appellant's cousin, testified that appellant's financial [*6] marijuana but denied there were any other drugs in the situation was precarious: house. Q. [PROSECUTOR:] Did he seem to be getting by? Officer Foster asked appellant for consent to search the What was his financial situation? house. Appellant replied that he would prefer they ask the "manager" for consent to search because he owned the A. Really, there was no financial situation. property; appellant was just renting the apartment from him. Q. What do you mean? Another officer knocked on the door but they were unable to make contact with anyone at the next door unit; it appeared A. He really didn't have money. Didn't have money. to be vacant. Officer Foster testified that after he informed You know, what he had is what people wou ld help him appellant there was probable cause to believe there were out. I never known him to have since then no more than drugs inside the house and that the officers cou ld obtain a 30 or $40. To him, it was like he had money. search warrant, appellant consented to letting the officers Q. 30 or $40 was a lot to him? search the house. A. Not a lot of money, but he looked at it was enough Upon commencing the search, the first thing officers found for him to get by that day and probably unti l the next was ten bags of marijuana shoved under a staircase that was day. "I got money, 30 or $40," you know. under construction at the rear of the house. Officer Wagner testified that someone walking down the stairs would not I'm, "Yeah, okay. You got money."
Page 4 of 7 2015 Tex. App. LEXIS 8394, *8
Q. He was kind of one of those guys that lived day to onto the porch, and quickly shut the door behind him. day? Another officer observed an individual locking the door behind appellant and then picking up a bag and carrying it A Yeah. to the rear of the house. The bag was recovered during the search and marijuana was found inside. Officer Foster Officers found a total of 5.85 pounds, or 2653.56 grams, of testified that he cou ld smell the odor of marijuana [* ll] marijuana during their search of the home according to emanating from the house. The evidence showed the Lauren Woolridge, a drug chemist with the Southwestern marijuana found at the property was of a high-grade quality Institute of Forensic Sciences. Officer Wagner testified that and that it gave off a strong, pungent odor that would have the marijuana [*9] was a high-grade variety known as been difficult for the occupants of the house to ignore. "kush," "hydro," or "popcorn weed," and that it is more Officers also found a large number of baggies and a scale, expensive, stronger, and more pungent than "regular" and two containers were found in the living room with marijuana. He testified that such a large amount of a inscriptions indicating they had been used for marijuana. high-grade marijuana would have given off a distinct odor. The evidence found in the house suggested the marijuana Given the strong smell, he believed someone living in the was being broken down, packaged, and sold out of the home would have been aware of the marijuana. Officer house. Appellant told the officers he lived at the location Wagner also testified that the house was "(p]retty small." and that the other two individuals who were with him were Woolridge agreed that, at $20 a gram, the estimated value of just visiting. He said he was renting the house from the the marijuana found in the house would have been "manager" that lived next door, but when officers knoc ked $53,071.20. on the door to the next-door unit, it appeared to be unoccupied. A total of $975 in various denominations of Detective Timothy Falk, a narcotics detective with the U.S. currency was found during the search. Appellant, Dallas Police Department, testified that he obtained a search however, was unemployed at the time of his arrest, and warrant for the two cell phones seized from the residence. when appellant's cousin, Kelly, was asked about appellant's He found text messages on both phones that seemed financial situation, he responded, in part, that "there was no indicative of drug transactions. On the red phone, there were financial situation" and that appellant "really didn't have pictures of money and a gun similar to the one seized in this money." Other evidence showed that the large number of case. Detective Falk testified, however, that there were no $20 [* 12] bills found by officers (totaling $700 out of the text messages or photos on either phone that could be $975 recovered) was consistent with someone dealing drugs connected to appellant. on a $20-a-gram level. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence in The evidence showed appellant was present when the search this case is sufficient to link appellant to the marijuana. We was conducted. A portion of the 5.85 pounds of marijuana overrule appellant's first issue. recovered from the property was stashed beneath an unfinished [* IO] stairway at the back of the house. Officer Foster testified that the bags of marijuana would have been Possession of a Firearm by a Felo11 visible to someone going up the stairs. More marijuana and In his second issue, appellant contends the evidence is the gun were found in a hidden compartment in the dining insufficient to support the conviction for possession of a room. Officer Foster testified the house was "pretty small," firearm by a felon. and the marijuana was hidden in such a way as to be accessible only to one who exercised control over the house. The indictment in 05- 14-00834-CR alleged that on or about Appellant admitted to law enforcement officers, and he April 17, 2012, appellant intentionally and knowingly testified at trial, that he was smoking marijuana on April 17, possessed a firearm, to wit: a handgun, and that the 2012, when the officers arrived. Officer Foster testified that possession was before the fifth anniversary of h is release individuals wi ll sometimes attempt to minimize their guilt from parole for a prior felony conviction. See TEX. P ENAL by admitti:ng to the possession of smaller amounts of drugs CooE ANN. § 46.04(a)(] J.HN4 3''Possession' means actual while denying any knowledge of larger quantities of drugs care, custody, control, or management." Id. § /.07(a)(39). found at a location. Officer Foster also testified that, when As in cases involving the possession of a controlled he knocked on the door, appellant opened the door, walked substance, when an individual is charged with the unlawful
3 Appellant stipulated to the underlying felony at the beginning of trial, so the only issue before us is whether the evidence is sufficient to support the possession element.
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possession of a firearm, the State must prove the accused (I) back of the house where the remodeling work was being exercised care, custody, control, or management over the done. The gun "was sitting on the counter" and "was out in firearm, and (2) knew the object was a firearm. See Evans. the open." At the time he saw the firearm, the owner of the 202 S. W 3d at 161; Poindexter. 153 S. W 3d at 405. If the house, "Mr. D," was at the house and he and appellant were accused is not in exclusive possession of the area where outside talking. Kelly had gone into the house looking for [* 13) the contraband or firearm is found, the evidence must the bathroom and went in the wrong direction. He testified link the accused to the contraband or weapon. Evans. 202 that after he saw the gun he went outside and told appellant S. W 3d at 162; Poindexter. 153 S. W 3d at 406. Regardless of and Mr. D, "Hey, somebody needs to go put that up." After whether the evidence used is direct or circumstantial, the reviewing the evidence in the light most favorable to the State must establish that the accused's connection with the verdict, we conclude the evidence is sufficient for a rational firearm was more than just fortuitous. Evans. 202 S. W 3d at jury to find beyond a reasonable doubt that appellant 161 . As we noted earlier, mere presence at the location exercised care, custody, control, or management of the where the contraband is found is insufficient, by itself, to firearm. The jury was not required to believe appellant's establish actual care, custody, or control of the contraband. testimony that he had no idea to whom the handgun Id. at 162. But when combined with other links, either direct belonged. See Evans. 202 S. W3d at 166. Accordingly, the or circumstantial, presence or proximity may be sufficient to evidence is sufficient to support the jury's verdict. We establish that e lement beyond a reasonable doubt. See id. overrule appellant's second issue. [* 16) H NS There is no set formula to determine what links are sufficient and the number of links is not as important as the Use or Exhibition of a Deadly Weapon "logical force" or degree to which the factors, alone or in combination, tend to link the accused to the weapon. Id. In his third issue, appellant argues the evidence is insufficient Factors that may establish the link include (I) whether the to support the finding in 05- 14-00833-CR that he used or contraband or weapon was in plain view or found on the exhibited a deadly weapon during the commission of the accused; (2) the accused's proximity and accessibi lity to the possession of marijuana offense. weapon or contraband; (3) whether the accused owned or H N6 Article 42. 12. section 3g(a)(2) of the Texas Code of controlled the place where the contraband or weapon was Criminal Procedure permits the entry of a deadly weapon found; (4) whether the accused made any incriminating finding when it is shown that a defendant used or exhibited (".'14) statements; (5) whether the accused tried to flee; and a deadly weapon, or he was a party to the offense and knew (6) whether the accused made furtive gestures. Id. at 162 that a deadly weapon wou ld be used or exhibited. See TEX. n.12; Poindexter, 153 S. W 3d at 409-12. CoDE CRIM. PRoc. ANN. art. 42. 12. § 3g(a)(2). In the context The jury in this case cou ld have reasonably concluded of a deadly weapon finding, the term "use" means any appellant's connection to the firearm was more than employment of a deadly weapon, even simple possession, if fortuitous. The firearm was found, along with some of the that possession faci litates the associated felony. Coleman v. marijuana, in a hidden compartment in the dining room. State. 145 S. W 3d 649. 652 (Tex. Crim. App. 2004); Patter- Officer Wagner testified that a person walking through the son v. State. 769 S. W 2d 938. 941 (Tex. Crim. A pp. 1989). dining room would not have known about the hidden However, the term "exhibit" requires a weapon to be compartment. Appellant testified that because the house was consciously shown, displayed or presented to be viewed. being remodeled and only one room was furnished, he was Coleman. 145 S. W 3d at 652; Patterson. 769 S. W. 2d at 941. essentially living in one room while he stayed there. Appellant told the officers that whi le he lived at the 310 H N7 When reviewing the sufficiency of the evidence to Cumberland Street address, the other two individuals were support a deadly weapon finding, the issue is whether the just visiti ng. Although the gun and some of the marijuana weapon was found to have facilitated the defendant's were found in the hidden shelf compartment, Officer Foster possession and intended distribution of the drugs. See testified that the marijuana seized from the house was a Coleman. 145 S. W 3d at 655. The defendant's proximity to high-grade quality and had a strong, pungent odor that the gun at the time of the search is not dispositive. Id. at would have been apparent to anyone in the house. Appellant, 654. Likewise, ownership is not necessary to establish that in fact, expressed [* IS] fami liarity with the type and quality a defendant used a deadly weapon in violation of article of the "kush" marijuana seized in this case, stating on 42. 12. section 3g. Smith v. State. 176 S. W 3d 907, 919 (Tex. cross-examination that he was familiar with it because he App.- Dallas 2005, pet. refd). The focus is [*l7] on the was a "pothead." Kelly testified that, about a week before proximity of the guns to the drugs, not the proximity of the the arrest, he went to the house and saw a firearm in the guns to the defendant. See Coleman. 145 S. W 3d at 654-55;
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see also Morerw v. State, 978 S. W.2d 285. 289 (Tex. weapon to facilitate his possession and intended d istribution App.- Fort Worth 1998. no pet. ) (defendant "used" weapons of the narcotics. See Coleman. 145 S. W.3d at 655. Therefore, found in container lying beside concealed cocaine to facilitate the evidence in this case is sufficient for the jury to have his possession of narcotics with intent to distribute). We concluded appellant used or exhibited a deadly weapon must determine whether the cumulative effect of the factors during the commission of the possession of marijuana cou ld have allowed a rational jury to determine that the offense. We overrule appellant's third issue. defendant used the weapons to protect the drugs and the proceeds therefrom. Coleman. 145 S. W. 3d at 655. If we We affirm the trial court's judgment. determine the State fai led to show a defendant used a deadly weapon in the commission of an offense, we may delete the Isl Lana Myers deadly weapon finding. See Drichas v. State. 175 S. W. 3d LANA MYERS 795. 798 CTex. Crim. App. 2006). JUSTICE Officer Foster testified that they found the handgun hidden along with a quantity of the marijuana in the shelf Do Not Publish compartment. A handgun is a deadly weapon per se. TEX. PENAL CovE ANN. § 1.07(a){/7)(A). Evidence showed that the TEX. R. APP. P. 47 handgun, which had been reported stolen out of College Station, was loaded; it had eight rounds in the clip and one J UDGMENT in the chamber. The gun was ready to be fired. As Officer Wagner noted," All you have to do is pull the trigger." Other Based on the Court's opinion of this date, the judgment of evidence showed it is very common for people selling drugs the trial court is AFFIRMED. Judgment entered this 11th to be armed in order to protect their drug supply. A rational day of August, 2015. trier of fact could have found [*I S) that appellant "used" the
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