PD-0830&0831-15 PD-0830&0831-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/2/2015 4:32:41 PM Accepted 7/2/2015 4:58:44 PM ABEL ACOSTA NO._________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
Kendell NAJEE SIMINGTON Petitioner
v.
THE STATE OF TEXAS Respondent
Petition is in Cause Nos. 1327054D & 1327055D from the 396th Criminal Court of Tarrant County, Texas, and Cause Nos. 02-14-00187-CR & 02-14-00188-CR in the Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Kimberley Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner July 2, 2015 Kendell Najee Simington IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to the trial court’s final judgment, and the names and addresses of all trial and appellate counsel.
Trial Court Judge: Honorable Elizabeth Beach, Criminal District Court One, Tarrant County
Petitioner: Kendell Najee Simington
Petitioner’s Trial Counsel: Robin McCarty TBN: 24034561 Attorney and Counselor at Law 3322-B E. Belknap Fort Worth, Texas 76107
Petitioner’s Counsel Kimberley Campbell on Appeal: TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Tamla Ray TBN: 24046687 Michelle Dobson TBN: 24049075 District Attorney’s Office 401 West Belknap Fort Worth, Texas 76196
Appellee’s Counsel James Gibson on Appeal: TBN: 00787553 District Attorney’s Office 401 W. Belknap Street Fort Worth, Texas 76196
ii TABLE OF CONTENTS page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
I. The Court of Appeals erred when found the evidence sufficient to prove beyond a reasonable doubt that Petitioner was guilty of possession with intent to distribute cocaine. . . . .4
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
D. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
E. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
II. The Court of Appeals erred when found the evidence sufficient to prove beyond a reasonable doubt that Petitioner was guilty of possession of a firearm by a felon. . . . . . . . . . . . 12
iii A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
C. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iv INDEX OF AUTHORITIES
Cases page
Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . 8, 12
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006). . . . . . . . . . . . . . 6, 8, 9, 10
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . 7, 12, 13, 16
Juarez v. State, 198 S.W.3d 790 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . 7
Olivarez v. State, 171 S.W.3d 283 (Tex. App.– Houston [14th Dist.] 2005, no pet.). . . . . . . . . . . . . . 8, 9, 10
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . 8, 12, 14
Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . 7, 13, 16
Wright v. State, 603 S.W.2d 838 (Tex. Crim. App. 1980). . . . . . . . . . . . . . . . . . . . . 8
Simington v. State, 02-14-00187-CR, 02-14-00188-CR, 2015 WL 3917829 (Tex. App.–Fort Worth, June 25, 2015, no. pet. h.) (mem. op., not designated for publication). . . . 2, 6
Smith v. State, 176 S.W.3d 907 (Tex. App.–Dallas 2005, pet. ref’d). . . . . . . . . . 14
v Statutes
T EX. H EALTH & S AFETY C ODE A NN. § 481.002(38) (West 2010). . . . . . . 8
T EX. H EALTH & S AFETY C ODE A NN. § 481.112(d) (West 2010). . . . . . . . 1
T EX. H EALTH & S AFETY C ODE A NN. § 481.115(d) (West 2010). . . . . . 1, 7
T EX. P ENAL C ODE A NN. § 1.07(a)(39) (West 2011). . . . . . . . . . . . . . . . . 13
T EX. P ENAL C ODE A NN. § 46.04(a) (West 2011). . . . . . . . . . . . . . . . . . . . 1
T EX. P ENAL C ODE A NN. § 46.04 (West 2011). . . . . . . . . . . . . . . . . . . . . .13
vi STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
Petitioner Kendell Najee Simington (“Mr. Simington” or
“Petitioner”) was charged by two-count indictment with possession of
a controlled substance (cocaine) between four and 200 grams with
intent to distribute, see T EX. H EALTH & S AFETY C ODE A NN. § 481.112(d)
(West 2010), and possession of a controlled substance (cocaine)
between four and 200 grams. See T EX. H EALTH & S AFETY C ODE A NN. §
481.115(d) (West 2010). The indictment included a deadly weapon
allegation and a repeat offender notice. (054 C.R. 6).1 Mr. Simington
was also charged by separate indictment with unlawful possession of
a firearm by a felon. See T EX. P ENAL C ODE A NN. § 46.04(a) (West 2011).
On April 29, 30 and May 1, 2014, a jury trial was held in Criminal
District Court Number One of Tarrant County, the Honorable Elizabeth
References to the Clerk’s Record in Cause Number 1327054D will be designated as “054 C.R. xx” and references to the Clerk’s Record in Cause Number 1327055D will be designated as “055 C.R. xx”.
1 Beach presiding. (R.R. II, III, IV, V, & VI: passim). The jury found Mr.
Simington guilty as charged of possession with intent to distribute
cocaine between four and 200 grams, and guilty as charged of unlawful
possession of a firearm by a felon. (054 C.R. 71; 055 C.R. 68; V R.R. 6-7).
The jury found that Mr. Simington did not use or display a deadly
weapon. (054 C.R. 74; V R.R. 6-7). Punishment was to the jury, which
found the repeat offender paragraph to be true based on Mr.
Simington’s plea of true, and sentenced Mr. Simington to thirty (30)
years incarceration on the possession with intent to distribute case and
ten (10) years incarceration on the unlawful possession of a firearm by
a felon case. (054 C.R. 90; 055 C.R. 81; V R.R. 51). A timely Notice of
Appeal was filed on May 1, 2014. (054 C.R. 99; 055 C.R. 90).
STATEMENT OF PROCEDURAL HISTORY
The opinion of the Second Court of Appeals affirming Mr.
Simington’s convictions was handed down on June 25, 2015. See
Simington v. State, 02-14-00187-CR, 02-14-00188-CR, 2015 WL 3917829
(Tex. App.–Fort Worth, June 25, 2015, no. pet. h.) (mem. op., not
designated for publication).
2 GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when found the evidence sufficient to prove beyond a reasonable doubt that Petitioner was guilty of possession with intent to distribute cocaine.
GROUND FOR REVIEW TWO
II. The Court of Appeals erred when found the evidence sufficient to prove beyond a reasonable doubt that Petitioner was guilty of possession of a firearm by a felon.
REASONS FOR REVIEW
1. The decision by the Second Court of Appeals has decided an
important question of state law in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals.
2. The Second Court of Appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far sanctioned
such a departure by a lower court, as to call for an exercise of the Court
of Criminal Appeals’ power of supervision.
3 ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when found the evidence sufficient to prove beyond a reasonable doubt that Mr. Simington was guilty of possession with intent to distribute cocaine.
A. Facts
In May of 20013, Travis Varrett (“Varrett”), a narcotics officer
with the Fort Worth Police Department, received information from a
confidential informant that narcotics were being distributed from an
apartment at 6043 Stoneybrook, in Tarrant County. (IV R.R. 36). Based
on that information, Varrett and his partner, Officer Bruce Anderson
(“Anderson”), conducted surveillance on multiple occasions at the
location and discovered that the activities and traffic taking place at the
location were consistent with illegal narcotics trafficking. (IV R.R. 36).
The officers then conducted at least two controlled buys of narcotics
from the apartment, whereby confidential informants would make
purchases from the location under the direction, observation and
control of officers Varrett and Anderson. (IV R.R. 41-43).
Based on the information obtained from their surveillance,
confidential informants, and controlled buys, Varrett and Anderson
4 were able to obtain a search warrant for the apartment located at 6043
Stoneybrook. (IV R.R. 43-44; VI R.R. St. Ex. 39).
The search warrant was executed at the apartment located at
6043 Stoneybrook on May 16, 2013. (IV R.R. 46). Varrett and Anderson
conducted the search of the premises pursuant to the search warrant,
and recovered cocaine packaged for resale, plastic baggies of the type
used in narcotics trafficking, scales with cocaine residue of the type
used for weighing narcotics for distribution, drug trafficking records,
loose currency, cellular telephones, and a pistol. (IV R.R. 50, 51, 55, 58,
59-60, 64). Petitioner, as well as a female named Delisha Bennett, were
present at the scene of the search and were taken into custody. (IV R.R.
49). The loose currency, packaged drugs, cellular telephones, drug
records, one scale and the pistol were located on the floor between a
couch (where Delisha Bennett was seated) and a recliner (where
Petitioner was seated). (IV R.R. 99-101, 105-106). A search of Petitioner
revealed that he had approximately $600 in his pants pocket in small
denominations. (IV R.R. 52, 53).
At trial, Varrett admitted that none of the controlled drug buys
had been from Petitioner, and that Petitioner had not been named or
5 described by his confidential informants as a person selling narcotics.
(IV R.R. 71-73, 75). In fact, prior to the execution of the search warrant,
Mr. Simington had not come to the attention of the police in regards to
the apartment or narcotics trafficking. (IV R.R. 75, 79, 95-96).
Mr. Simington’s fingerprints were not discovered on any of the
items seized by the police, nor were his fingerprints located on any
items in the apartment. (IV R.R. 88-91, 115). Though the apartment had
various personal items in one of the rooms and in some of the cabinets,
there was no evidence presented at trial that any of these items could
be connected to Petitioner in any way.
B. Opinion Below
The Second Court of Appeals began its analysis by identifying
the proper test of factors to be used when assessing whether the state
has sufficiently linked an accused to the contraband. Simington, 2015
WL 3917829 at 2-3 (citing Evans v. State, 202 S.W.3d 158, 161–62 (Tex.
Crim. App. 2006). However, the court then proceeded to apply that test
incorrectly by finding the evidence sufficient to show beyond a
reasonable doubt to convict Mr. Simington of both offenses. Simington,
2015 WL 3917829 at *3.
6 C. Standard of Review
In a due-process review of the sufficiency of the evidence to
support a conviction, an appellate court must review all of the evidence
in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wise v. State, 364 S.W.3d 900,
903 (Tex. Crim. App. 2012).
D. Controlling Law
The State is required to prove every element of the offense set
forth in the indictment beyond a reasonable doubt. See Juarez v. State,
198 S.W.3d 790, 793 (Tex. Crim. App. 2006) (stating that elements of
offense must be charged in indictment, submitted to jury, and proven
by State beyond reasonable doubt). A person commits the offense of
possession of a controlled substance if he knowingly or intentionally
possesses it. T EX. H EALTH & S AFETY C ODE A NN. § 481.115(d). Under this
indictment, the State had to prove beyond a reasonable doubt that the
accused (i) intentionally or knowingly (ii) possessed, i.e., exercised
actual care, custody, control, and management over cocaine (iii) in an
amount of more than four grams but less than 200 grams on or about
7 the date set forth in the indictment. See Poindexter v. State, 153 S.W.3d
402, 405-06 (Tex. Crim. App. 2005); Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995). The State alone has the burden of proving
beyond a reasonable doubt every essential element of the offense
charged. Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1980).
A person possesses an object if he has actual care, custody,
control, or management of that object. T EX. H EALTH & S AFETY C ODE
A NN. § 481.002(38) (West 2010). When drugs are found and the accused
is not in exclusive possession of the place where they are found, the
connection to the drugs must be more than fortuitous, and to this end,
Texas courts utilize a links rule that is designed to protect innocent
bystanders from conviction merely because of their proximity to
someone else’s drugs. Evans, 202 S.W.3d at 161–62; Olivarez v. State, 171
S.W.3d 283, 291 (Tex. App.–Houston [14th Dist.] 2005, no pet.). Mere
presence at the location where drugs are found is insufficient, by itself,
to establish actual care, custody, or control, but presence or proximity,
when combined with other evidence, direct or circumstantial, may be
sufficient. Evans, 202 S.W.3d at 161–62. Such “links” generate a
reasonable inference that the accused knew of the contraband’s
8 existence and exercised control over it. See Evans, 202 S.W.3d at 161–62.
Courts have identified the following non-exclusive factors that may
help to show an accused’s links to a controlled substance: (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 narcotic; (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 where 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. Olivarez, 171 S.W.3d at 291. It is not
the number of links that is dispositive but, rather, the logical force of all
of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.
9 E. Application
A review of the factors set forth above shows that Petitioner was
present at the apartment when the search was conducted; though the
evidence showed that the cocaine was closer to Delisha Bennett than to
Petitioner; the contraband was in plain view and nearby; there was no
evidence that Petitioner was under the influence of narcotics at the time
of the search; Petitioner had no contraband on his person; Petitioner
made no incriminating statements, nor did he try to flee or make any
furtive gestures; there was no evidence that an odor of contraband was
present in the apartment; other drug paraphernalia was present;
Petitioner did own or have any right to possession of the premises; the
place where the drugs were found was enclosed; and, though
Petitioner did have $600 in cash on his person, his conduct most
assuredly did not indicate a consciousness of guilt.2 Olivarez, 171
S.W.3d at 291. Moreover, these factors are not exclusive, and other
pertinent facts tend to disprove any allegation that Petitioner is
Of critical note, Delisha Bennett had $474 in small denomination currency spread out on the floor in front of her when the search warrant was executed. (IV R.R. 54-55, 87, 92, 95; VI R.R. 9, 15, 17). Under the State’s theory of the case, and with no more evidence than that presented against Mr. Simington, it is just as likely that she was the person selling cocaine from 6043 Stoneybrook.
10 somehow connected to the cocaine discovered at the apartment. First,
Varrett admitted that none of the controlled drug buys had been from
Petitioner, and that Petitioner had not been named or described by his
confidential informants as a person selling narcotics. (IV R.R. 71-73, 75).
Second, prior to the execution of the search warrant, the apartment had
been under periodic surveillance on numerous occasions; Varrett
admitted that Petitioner had not been previously observed or otherwise
come to the attention of the police in regards to the apartment or
narcotics trafficking. (IV R.R. 75, 79, 95-96).
Third, Petitioner’s fingerprints were not discovered on any of the
items seized by the police, nor were his fingerprints located on any
items in the apartment. (IV R.R. 88-91, 115). Finally, though the
apartment had various personal items in one of the rooms and in some
of the cabinets, there was no evidence presented at trial that any of
these items could be connected to Petitioner in any way. Rather, but for
Mr. Simington’s misfortune to have been a bystander in the wrong
place at the wrong time with $600 in his pocket, this Brief would have
in all likelihood been unnecessary.
The evidence presented by the state showed that someone was
most likely distributing cocaine from 6043 Stoneybrook. However, the
11 state’s evidence failed to meet the burden of proving beyond a
reasonable doubt that Petitioner had exercised actual care, custody,
control, or management of that cocaine. See Poindexter, 153 S.W.3d at
405-06; Brown, 911 S.W.2d at 747. Because of that failure of evidence, no
rational juror should have been able to find every essential element of
the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at
319, 99 S.Ct. at 2789; Wise, 364 S.W.3d at 903.
Under Texas law, this Court stands as the shield against unfair
and overreaching conduct on the part of the government, with the
capability to correct unjust convictions and see that justice is done.
Pursuant to that vital role, this Court should vacate the judgment
entered below and render a verdict of acquittal on the possession with
intent to distribute cocaine charge. Jackson v. Virginia, 443 U.S. at 319,
99 S.Ct. at 2789; Wise, 364 S.W.3d at 903.
GROUND FOR REVIEW TWO (RESTATED)
II. The Court of Appeals erred when found the evidence sufficient to prove beyond a reasonable doubt that Petitioner was guilty of possession of a firearm by a felon.
A. Standard of Review
In a due-process review of the sufficiency of the evidence to
12 support a conviction, an appellate court must review all of the evidence
in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99
S.Ct. at 2789; Wise, 364 S.W.3d at 903.
B. Controlling Law
Section 46.04 of the Texas Penal Code provides that a person who
has been convicted of a felony commits an offense if he possesses a
firearm after the conviction and before the fifth anniversary of the
person’s release from confinement. T EX. P ENAL C ODE A NN. § 46.04
(West 2011). Petitioner stipulated to the fact that he had previously
been convicted of a felony within the past five years. (VI R.R. St. Ex.
38). As with the possession of cocaine, the state failed to show that
Petitioner possessed the handgun discovered at the Stoneybrook
apartment.
Possession is defined by the penal code as “actual care, custody,
control, or management.” T EX. P ENAL C ODE A NN. § 1.07(a)(39) (West
2011). When there is no evidence that the defendant was in exclusive
control of the place where the firearm was found, the state must offer
additional, independent facts and circumstances that link him to the
13 firearm. Smith v. State, 176 S.W.3d 907, 916 (Tex. App.–Dallas 2005, pet.
ref’d). The links between an accused and the firearm may be
established by either direct or circumstantial evidence. See Poindexter,
153 S.W.3d at 406. In determining whether sufficient links exist, this
Court should examine the same factors looked to in connection with
Petitioner’s first issue, such as whether the firearm was in plain view,
whether Petitioner owned the premises where the firearm was found,
whether he was in close proximity to the firearm and had ready access
to it or whether it was found on him, whether he attempted to flee,
whether his conduct indicated a consciousness of guilt, whether he had
a special connection to the firearm, whether the firearm was found in
an enclosed space, and whether he made incriminating statements.
Smith, 176 S.W.3d at 916. It is the logical force of the factors, not the
number of factors present, that determines whether the elements of the
offense have been established. Smith, 176 S.W.3d at 916.
C. Application
Here, Officer Jones testified that upon entry to the front room of
the apartment, he observed Petitioner sitting in the recliner and Delisha
Bennet sitting on the couch. (IV R.R. 19). The evidence in the form of an
actual photograph of where the gun was located shows that it was in
14 plain view, though clearly closer to where Delisha Bennett was sitting
on the couch than to where Petitioner was sitting in the recliner.3 (VI
R.R. St. Ex. 9). As stated previously, the evidence showed that
Petitioner did not own or rent the apartment. Additionally, the gun
was not discovered on his person, nor did he attempt to flee, make any
furtive gestures, or indicate a consciousness of guilt by his conduct.
Finally, there was no evidence showing that Petitioner had any
connection to the gun, much less a special one, and he did not make
any incriminating statements. Critically, Petitioner’s fingerprints were
not on the gun, and the evidence shows that he was not wearing gloves
at the time of the arrest. (VI R.R. St. Exs. 5, 7).
As with the analysis of Petitioner’s first issue, it’s clear here that
the State’s evidence showed little more than the fact that Petitioner
might have been in the vicinity of a firearm on the date in question.
However, when fitted to the beyond a reasonable doubt constitutional
burden which protects all defendants, even when viewed in the light
most favorable to the verdict, no rational juror could have found that
Petitioner exercised care, custody and control over the firearm. Jackson
Officer Jones admitted that his testimony that the gun could have been in Simington’s lap was pure speculation. (IV R.R. 30).
15 v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903.
This Court should therefore vacate the judgment and sentence entered
below and render a verdict of acquittal on the possession of a firearm
charge. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; Wise, 364
S.W.3d at 903.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner
respectfully prays that this Court grant discretionary review and allow
each party to fully brief and argue the issues before the Court of
Criminal Appeals, and that upon reviewing the judgment entered
below, that this Court reverse the opinion of the Second Court of
Appeals and render a verdict of acquittal.
Respectfully submitted,
/s/Kimberley Campbell Kimberley Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner Kendell Najee Simington
16 CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 3,911.
/s/Kimberley Campbell Kimberley Campbell
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 2nd day of July , 2015.
17 APPENDIX
1. Opinion of the Second Court of Appeals.
18 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00187-CR NO. 02-14-00188-CR
KENDELL NAJEE SIMINGTON APPELLANT
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY TRIAL COURT NOS. 1327054D, 1327055D
MEMORANDUM OPINION1
I. INTRODUCTION
A jury convicted Appellant Kendell Najee Simington of (i) possession with
intent to deliver between 4 and 200 grams of cocaine and (ii) unlawful
possession of a firearm by a felon, and it assessed his punishment at 30 years’
confinement on the delivery charge and 10 years’ confinement on the firearm
1 See Tex. R. App. P. 47.4. charge. In two points, Simington argues that the evidence is insufficient to
support his conviction for both offenses. We will affirm.
II. BACKGROUND
In May 2013, narcotics officers received information about possible drug
activity at an apartment in Fort Worth. They began conducting surveillance on
the apartment and discovered information that led them to believe that it was
operating as a trap house. According to the officers, trap houses are generally
used for the sole purpose of selling illegal drugs, and it is common for these
places to lack any sign of actual habitation. While observing the apartment,
officers frequently saw visitors arrive and go inside for “three or four minutes” and
then leave. Believing that drugs were being sold out of the apartment, officers
enlisted the help of a confidential informant to conduct two controlled buys at the
apartment. On both occasions, the informant—who had been searched before
going in—returned with narcotics. The informant also reported that there was a
firearm inside the apartment and that the door was barricaded by two pieces of
wood to prevent unaided entry.
Armed with this information, police obtained a “high risk” search warrant for
the apartment and had it carried out by the SWAT team. The SWAT team took
down the door with a battering ram and threw in a “flash bang” device to disorient
anyone inside. The officers then entered the apartment and discovered two
individuals—Simington and Delisha Bennett. Between them was a ceramic plate
with several baggies of what was later determined to be cocaine. Also in the
2 room were strips of paper with a phone number, at least two digital scales, and
$474 in mostly one- and five-dollar bills. There was a gun on the floor in front of
Simington and $600 in small denominations inside his pocket.
III. EVIDENTIARY SUFFICIENCY—POSSESSION
Simington argues in his first and second points that the evidence is
insufficient to link him to the narcotics and to the gun that were found inside of
the apartment.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
B. Possession with Intent to Deliver
To support Simington’s conviction, the State had to prove that he
knowingly or intentionally possessed between 4 and 200 grams of cocaine. See
Tex. Health & Safety Code Ann. §§ 481.112(a), (d), 481.115(d) (West 2010).
“Possession” means that the accused exercised “actual care, custody, control, or
3 management” over the substance. Tex. Penal Code Ann. § 1.07(a)(39) (West
Supp. 2014); see Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.
2005). While mere presence alone is not sufficient to establish possession, it
may become sufficient to establish guilt beyond a reasonable doubt “when
combined with other evidence, either direct or circumstantial.” Evans v. State,
202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Independent facts and
circumstances may link the accused to the contraband such that it may be
justifiably concluded that the accused knowingly possessed the contraband. Id.
at 161‒62.
Relevant links connecting the defendant to possession of an illegal
substance 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 narcotic; (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 where 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
4 of guilt. Id. at 162 n.12; Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). These factors are non-exclusive, and it is not
the number of links but the “logical force” of all the evidence that supports a
finding of guilt. Olivarez, 171 S.W.3d at 291–92.
Here, numerous links connect Simington to the possession of the cocaine
seized by police officers. First, Simington was present during the search and
was in close proximity to the drugs, which were discovered in plain view.
Second, with trap houses, it is common for more than one dealer to sell drugs out
of the same location, and the record demonstrates that officers were unable to
connect the apartment to a particular name. Furthermore, it was clear that no
one lived in the apartment because there was a lack of furniture, food, and
clothes; while there was a TV, a couch, and a chair, narcotics officers stated that
this was not uncommon for trap houses. Simington argues that he cannot be
connected to the apartment because he did not sell the drugs to the informant
during the controlled buys and because his existence had not come to the
attention of the narcotics officers until after the execution of the search warrant,
but these facts are significantly outweighed by the logical force of the evidence
linking Simington to the narcotics.
Simington argues that he was merely a misfortunate “bystander in the
wrong place at the wrong time with $600 dollars in his pocket.” However, while
having large sums of cash on one’s person may not be dispositive, the record
shows that when large amounts of money are made up of small denominations,
5 officers will generally equate it to narcotics sales. Moreover, an officer at the
scene testified that Simington was likely not at the apartment to purchase
narcotics because the door was barricaded from the inside. According to the
officer, usually when someone was inside the apartment buying drugs, the
barricade came down.
Simington also argues that he cannot be linked to any items inside of the
apartment because police were unable to recover his fingerprints on any of the
seized items, but this is not dispositive in our sufficiency review. As the record
shows, things like the little baggies of cocaine were never tested for fingerprints,
and other items that were tested, like the gun, did not reveal any fingerprints at
all.
Viewing all of the evidence in the light most favorable to the verdict, we
hold that a rational jury could have found beyond a reasonable doubt that
Simington intentionally or knowingly possessed the cocaine discovered in the
apartment. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Evans, 202 S.W.3d
at 162; Olivarez, 171 S.W.3d at 291–92. Thus, we hold that the evidence is
sufficient to support Simington’s conviction for possession with intent to deliver
between 4 and 200 grams of cocaine, and we overrule his first point. See, e.g.,
Gabriel v. State, 842 S.W.2d 328, 330‒31 (Tex. App.—Dallas 1992) (holding
same based on similar facts), aff’d, 900 S.W.2d 721 (Tex. Crim. App. 1995).
6 C. Unlawful Possession of a Firearm
Under section 46.04 of the Texas Penal Code, a person commits a crime if
he possesses a firearm after the conviction and before the fifth anniversary of his
release from confinement. Tex. Penal Code Ann. § 46.06(a)(1) (West 2011).
There is no dispute that Simington was incarcerated for conviction of a felony
less than five years prior to his arrest in this case; Simington only argues that the
evidence was insufficient to link him to possession of the gun. Like in the
narcotics context, when there is no evidence that the appellant was in exclusive
control of the firearm, the State must offer additional, independent facts and
circumstances linking him to the weapon. See Smith v. State, 176 S.W.3d 907,
916 (Tex. App.—Dallas 2005, pet. ref’d) (citing Poindexter, 153 S.W.3d at 406).
We use the same non-exclusive relative links set out above. See Olivarez, 171
S.W.3d at 291–92.
The evidence demonstrates that Simington was present during the search
and that the gun was loaded, at his feet and readily accessible, and in plain view.
As the State contends, “[I]t [is] rational to conclude that [Simington] was using the
firearm found near him to protect that stash of drugs.” Indeed, as explained
above, the narcotics officers testified that the apartment was being used as a trap
house. While Simington’s fingerprints were not found on the gun, neither were
any other finger prints discovered. Viewing all of the evidence in the light most
favorable to the verdict, a rational jury could have found beyond a reasonable
doubt that Simington exercised actual care, custody, control, or management
7 over the gun. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Poindexter, 153
S.W.3d at 405–06. Accordingly, the evidence is sufficient to support Simington’s
conviction for unlawful possession of a firearm. See, e.g., Hamilton v. State,
No. 08-09-00012-CR, 2011 WL 676097, at *1‒3 (Tex. App.—El Paso Feb. 25,
2011, no pet.) (not designated for publication) (holding same under similar facts).
We overrule his second point.
IV. CONCLUSION
Having overruled Simington’s two points, we affirm the trial court’s
judgments.
/s/ Bill Meier
BILL MEIER JUSTICE
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2015