Turner, Kenneth Ray

Opinion

PD-0995&0996-15 PD-0995-15, PD-0996-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/27/2015 11:59:14 PM Accepted 8/28/2015 12:18:32 PM ABEL ACOSTA IN THE CLERK TEXAS COURT OF CRIMINAL APPEALS

KENNETH TURNER Petitioner

v. NO. PD-0995-15 NO. PD-0996-15

STATE OF TEXAS Respondent

_____________________

PETITION FOR DISCRETIONARY REVIEW

APPEAL FROM THE 1ST CRIMINAL DISTRICT COURT OF DALLAS COUNTY, TEXAS THE HONORABLE DON METCALFE

THE COURT OF APPEALS FOR THE FIFTH DISTRICT _____________________

DARIAN HOWARD SBN: 24067669 August 28, 2015 P.O. BOX 411252 DALLAS, TEXAS 75241 (214)372.3333 (Telephone) (214)372.3320 (Facsimile) darianhoward@yahoo.com (Email)

ORAL ARGUMENT REQUESTED

Appeal IDENTITY OF PARTIES AND COUNSEL

DEFENDANT-APPELLANT

KENNETH TURNER;

DARIAN HOWARD ATTORNEY STATE BAR NO. 24067669 P.O. BOX 411252 DALLAS, TEXAS 75241

PLAINTIFF-APPELLEE

STATE OF TEXAS;

DALLAS COUNTY DISTRICT ATTORNEY 133 N. RIVERFRONT BLVD. DALLAS, TEXAS 75207

Appeal i TABLE OF CONTENTS Page

TABLE OF CONTENTS…………………………………………… ii

INDEX OF AUTHORITIES………………………………………... iii-iv

STATEMENT REGARDING ORAL ARGUMENT………………. v

SUMMARGY OF ARGUMENT…………………………………... v

STATEMENT OF THE CASE…………………..…………………. 1

STATEMENT OF PROCEDURAL HISTORY……………………. 1

GROUNDS FOR REVIEW………………………………………… 2

STATEMENT OF THE FACTS…………………………………… 2-3

ARGUMENT………………………………………………………. 4-21

I. The evidence presented was legally insufficient to prove the requisite intent for the offense of possession with the intent to deliver a controlled substance.

A. The Standard of Review………………………….. 4-5

B. Application……………………………………….. 5-15

II. The evidence presented was legally insufficient to convict Appellant of the offense of unlawful possession of a firearm by a felon.

A. The Standard of Review………………………… 16-17

B. Application……………………………………… 17-20

PRAYER…………………………………………………………… 20

CERTIFICATE OF SERVICE…………………………………….. 21

Appeal ii INDEX OF AUTHORITIES

CASES Pages

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)……………….. 4, 14

Burden v. State, 55 S.W. 3d 608, 613 (Tex. Crim. App. 2001)……….. 4

In re B.P.H., 83 S.W.3d 400, 406 (Tex. App. Fort Worth 2002)……… 4

Johnson v. State, 23 S.W. 3d 1, 11 (Tex. Crim. App. 2000)…………... 5,15

Bates v. State, 155 S.W. 3d 212, 216-17 (Tex. App. Dallas 2004)…... 6,16

Joseph v. State, 897 S.W. 2d 374, 376 (Tex. Crim. App. 1995)………. 6

Brown v. State, 911 S.W. 2d 744, 747 (Tex.Crim.App. 1995)………… 6

Moore v. State, 640 S.W. 2d 300, 302 (Tex.Crim.App. 1982)…………. 6

Deshong v. State, 625 S.W. 2d 327, 329 (Tex.Crim.App. 1981)……… 7

Porter v. State, 873 S.W. 2d 729, 732 (Tex.App. Dallas 1994)………. 7

Wallace v. State, 932 S.W. 2d 519, 524 (Tex.App. Tyler 1995)………. 8

Oaks v. State, 642 S.W. 2d 174 (Tex. Crim. App. 1982)……………… 8-10

Bryant v. State, 574 S.W.2d 109 (Tex. Crim. App.1978)……………… 10

Ford v. State, 571 S.W.2d 924 (Tex. Crim. App.1978)……………….. 10

Cude v. State, 716, S.W. 2d 46,47 (Tex.Crim.App. 1986)………………. 10-11

Poindexter v. State, 153 S.W. 3d 402, 406 (Tex.Crim.App. 2005).….. 13,15

United States v. Jackson, 426 F.2d 305 (5th Cir. 1970)……………… 15

United States v. Jones, 133 F.3d 358 (5th Cir. 1998)………………… 15

Appeal iii Brown v. State, 270 S.W. 3d 564, 568 (Tex.Crim.App. 2008)............... 15

Evans v. State, 202 S.W. 3d 158, 161-62 (Tex.Crim.App. 2006).……… 16

Smith v. State, 176 S.W. 3d 907, 916 (Tex.App.Dallas 2005)................. 17

STATUTES

Tex. Health and Safety Code 481.112(a)………………………….... 2, 5, 14

Tex. Penal Code Ann. § 46.04(a)(1)…….………………………...... 2, 15

Tex. Penal Code Ann. § 6.01(a)…………………………………….. 16

Tex. Penal Code Ann. § 6.01(b)…………………………………...... 16

Tex. Penal Code Ann. § 1.07(a)(39)………………………………… 16

Appeal iv STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested.

SUMMARY OF ARGUMENT

It is well settled in Texas law that a person unlawfully possesses a

controlled substance if he/she knowingly (1) exercised control, management,

or care over the substance, and (2) accused knew the matter possessed was

contraband. Further, to establish the offense of unlawful possession of a

firearm by a felon, the State must show (1) that the defendant was previously

convicted of a felony offense and (2) possessed a firearm after the

conviction and before the fifth anniversary of the person’s release from

confinement. If the contraband or firearm is not found on defendant’s

person or is not seen in the defendant’s exclusive care, custody, control or

management, additional independent facts and circumstances must be

offered that link the defendant to the contraband or firearm.

Here, the State failed to provide evidence sufficient to satisfy the

affirmative links rule required for the crime of possession, and the evidence

was legally insufficient to support a conviction for said offense.

Appeal v STATEMENT OF THE CASE

On January 15, 2013, Kenneth Turner was charged by indictment with

the offense of Possession with the Intent to Deliver a Controlled Substance

and Unlawful Possession of a Firearm by a Felon. See C.R. at 11. A trial was

held from June 25 through June 27, 2013. The jury found Mr. Turner guilty

of the offense of retaliation on June 28, 2013. See C.R. at 6-7. On August

23, 2013, the Court imposed a sentence of thirty-five (35) years in the Texas

Department of Correctional Facilities on the charge of Possession with the

Intent to Deliver a Controlled Substance, and ten (10) years in the Texas

Department of Correctional Facilities on the Unlawful Possession of a

Firearm by a Felon charge. See C.R. at 39. On September 9, 2013, Mr.

Turner timely filed a Notice of Appeal from his conviction and sentence. See

C.R. at 42.

STATEMENT OF PROCEDURAL HISTORY

(1) Date of opinion from Court of Appeals: October 29, 2014

(2) Date of Motion for Rehearing: December 19, 2014

(3) Date Motion for Rehearing Disposed: June 4, 2014

(4) Date of Motion or En Banc Reconsideration : January 16, 2015

(5) Date Motion for En Banc Disposed: June 16, 2015

Appeal 1 GROUNDS FOR REVIEW

I. Was the evidence presented legally insufficient to prove the requisite intent for the offense of possession with the intent to deliver a controlled substance?

II. Was the evidence presented legally insufficient to prove the requisite intent for the offense of unlawful possession of a firearm by a felon?

STATEMENT OF THE FACTS

Appellant was charged with the offense of possession with the intent

to deliver a controlled substance in violation of Tex. Health and Safety Code

481.112(a) and unlawful possession of a firearm by a felon in violation of

Tex. Penal Code § 46.04(a)(1). Specifically the State alleged Appellant

knowingly possessed a controlled substance while having the intent to

distribute that substance. To that effect, it produced two witnesses who

testified as to his actions on the date of the alleged acts.

Officer Robert Wilkerson and Officer Stephen Cole, described in

detail their encounters with Appellant. Officer Robert Wilkerson testified as

to his involvement in the arrest of Appellant. Officer Wilkerson states that

he arrived at the address of 8081 Marvin D. Love, Apartment # 223 in

Dallas County, in response to a family violence and armed encounter call.

Officer Wilkerson testified that when he first encountered Appellant, he was

on the commode in the apartment. (R.R. at III:69) He stated that when

talking to Appellant, he did not appear to be nervous, calm and did not

Appeal 2 appear as if he was hiding anything. (Id. at III:71) According to Officer

Wilkerson’s testimony, Appellant was not in close proximity to the guns and

drugs that were found on the premises. During the encounter, Officer

Wilkerson admits that he did not question Appellant as whether any of the

drugs or weapons belonged to him, and only assumed that the contraband

was that of Appellant’s. He also admits that he assumed that Appellant lived

at the residence, and did not find any evidence that Appellant lived there.

(R.R. III:112) Officer Stephen Cole, also stated that Appellant seemed very

calm during the investigation. However, he admits that he found the facts as

the complainant presented seemed a little strange, and he had considered

releasing Appellant to leave. (R.R. at III:106) Officer Cole further admitted

that he assumed the contraband belonged to Appellant and did not bother to

investigate further as to whether he actually lived at the residence.

Officer Cole stated that the drugs and guns were not within the reach

of Appellant when they came into contact with him. (R.R. at III:72,111)

Both officers testified that there was no evidence linking Appellant to drugs

at the residence, and the arrest of Appellant was made merely off an

assumption. (R.R. III:80,82,84,112) They both admitted that they failed to

interview Appellant and inquire as to whether he lived at the residence or

whether the contraband belonged to him or complainant. Id.

Appeal 3 ARGUMENT

I. The evidence presented was legally insufficient to prove the requisite intent for the offense of Possession with the Intent to Deliver a Controlled Substance.

A. The Standard of Review

In reviewing the legal sufficiency of the evidence, we examine the

evidence in the light most favorable to the verdict and 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, 318-

319 (1979). The standard is the same for both direct and circumstantial

evidence cases. Burden v. State, 55 S.W. 3d 608, 613 (Tex. Crim. App.

2001). The critical inquiry is whether, after so viewing the evidence, any

rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. 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. In re B.P.H., 83 S.W.3d 400, 406 (Tex. App. Fort Worth

2002). In analyzing whether the evidence was factually sufficient to support

the conviction, we must determine “whether a neutral review of all the

evidence, both for and against the finding, demonstrates that the proof of

guilt is so obviously weak as to undermine confidence in the jury’s

Appeal 4 determination, or the proof of guilt, although adequate if taken alone, is

greatly outweighed by contrary proof.” Johnson v. State, 23 S.W. 3d 1, 11

(Tex. Crim. App. 2000).

B. Application

As detailed above, appellant was arrested on a charge of possession

with the intent to distribute on January 9, 2013. Here there is insufficient

evidence that appellant actually had possession of the drugs found at the

residence. Two issues under this point of error are put before the Court.

The first is the fact that Appellant was not found in possession of the

contraband found. Secondly, Appellant was not in exclusive possession of

the property where the contraband was found. Where the State cannot in

any way link appellant to drugs found hidden in a home in which he held no

ownership interest and was nothing more than a temporary visitor, the

evidence is legally insufficient to support a conviction for the offense of

possession. A person commits an offense if he knowingly manufactures,

delivers, or possesses with intent to deliver a controlled substance. Tex.

Health & Safety Code Ann. § 481.112(a). The evidence submitted by the

State supporting the findings of the jury was that of the testimony of Officer

Robert Wilkerson, Officer Stephen Cole and the contraband found at the

residence. Officer Wilkerson and Officer Cole testified for the State that the

Appeal 5 complainant made allegations to them that appellant had drugs in her room.

However, neither gave testimony that they actually saw Appellant with the

drugs in his physical possession. Possession means actual care, custody,

control, or management. Bates v. State, 155 S.W. 3d 212, 216 (Tex. App.-

Dallas 2004). A person commits a possession offense only if he voluntarily

possesses the prohibited item. Id. Possession is a voluntary act if the

possessor knowingly obtains or receives the thing possessed or is aware of

his control of the thing for a sufficient time to permit him to terminate his

control. Id. To prove unlawful possession of a controlled substance, the

State must prove that: (1) the accused exercised control, management, or

care over the substance; and (2) the accused knew the matter possessed was

contraband. Joseph v. State, 897 S.W. 2d 374, 376 (Tex. Crim. App. 1995).

Whether this evidence is direct or circumstantial, “it must establish, to the

requisite level of confidence, that the accused’s connection with the drug

was more than fortuitous. Where circumstantial evidence is involved, the

circumstances must exclude every other reasonable hypothesis except that of

the guilt of the defendant. Moore v. State, 640 S.W. 2d 300, 302 (Tex. Crim.

App. 1982). This is the whole of the so-called ‘affirmative links’ rule.”

Brown v. State, 911 S.W. 2d 744, 747 (Tex.Crim.App. 1995). Thus the Court

of Criminal Appeals have formulated the rule that “when the accused is not

Appeal 6 in exclusive possession of the place where the substance is found, it cannot

be concluded that the accused had knowledge of and control over the

contraband unless there are additional independent facts and circumstances

which affirmatively link the accused to the contraband.” Deshong v. State,

625 S.W. 2d 327, 329 (Tex.Crim.App. 1981). The essential element of the

case to be proven by the State is whether appellant exercised control,

management and care over the substance. Both officers in their testimony

confirm that appellant at no point in time had physical possession of the

drugs found in the apartment. (R.R. III:73, 104-105, 116). Furthermore the

State failed to present any evidence that appellant was in exclusive

possession of the place where the drugs were found. As stated earlier, and

supported by precedence, when the accused is not in exclusive possession of

the substance, the State is required to present evidence affirmatively linking

Appellant to the contraband. Thusly, the State was required to provide

additional independent facts and circumstances affirmatively linking

appellant to the drugs found. No set formula of facts exist that would dictate

a finding of affirmative links sufficient to support an inference of knowing

possession of contraband. Porter v. State, 873 S.W. 2d 729, 732 (Tex.App. –

Dallas 1994). The number of links is less important than the “logical force”

or degree to which the links, alone or in combination, tend to affirmatively

Appeal 7 link the accused to the contraband. Wallace v. State, 932 S.W. 2d 519, 524

(Tex.App. – Tyler 1995). Possible affirmative links include: (1) whether the

defendant was present when the drugs were found; (2) whether the drugs

were in plain view; (3) whether the drugs were found in proximity to and

accessible to the defendant; (4) whether the defendant was under the

influence of drugs when arrested; (5) whether the defendant possessed other

contraband or drug paraphernalia; (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 drugs; (10) whether the defendant owned or had the right to

possess the place where the drugs were found; (11) whether the place the

drugs were found was enclosed; (12) the amount of drugs found; (13)

whether the defendant possessed weapons; and (14) whether the defendant

possessed a large amount of cash.

The Appellate Court, in considering the evidence and inferences

tending to support the findings under attack, will find that the essential

element of this crime is absent. In its review of the case at bar Appellant

urges this Court to consider its ruling in Oaks v. State, 642 S.W. 2d 174 (Tex.

Crim. App. 1982). In Oaks, Appellant was convicted of possession of

heroin. The officers in Oaks, obtained a warrant to search the home after

Appeal 8 observing eight to ten individuals come to the house in the morning, and

three or four individuals in the afternoon. The officer stated individuals

known to them as heroin addicts exchanged money with the appellant at the

door of the house or outside for "something" which he could not identify.

Appellant was seen standing in the kitchen of the home. He was about two

feet from a trash can. According to testimony, four, five or six persons were

playing dominoes at a table about six or eight feet from the trash can. The

testifying officer did not see the appellant make any furtive gestures. He did

not attempt to escape or flee. The officer searched appellant and found no

drugs, etc., but found "some money," but could not recall how much. He

related there were no needle marks on appellant's person, and that the

appellant was not under the influence of heroin. The officer stated he moved

the appellant to another location in the house. In searching the bedrooms the

officer revealed he found "drugs in some of the other rooms," but he did not

articulate what drugs he found. This Honorable Court in overturning the

Court of Appeals decision stated the following; from the facts only a strong

suspicion is created that appellant was guilty of the offense charged. This is

insufficient to sustain the conviction. In citing several cases out of the Texas

Court of Criminal Appeals, the Court gave the following reasoning. A

conviction based on circumstantial evidence cannot be sustained if the

Appeal 9 circumstances do not exclude every other reasonable hypothesis except that

of the defendant's guilt. Bryant v. State, 574 S.W.2d 109 (Tex. Crim.

App.1978). Proof which amounts only to a strong suspicion or mere

probability is insufficient. Ford v. State, 571 S.W.2d 924 (Tex. Crim.

App.1978).

A similar case Cude v. State, 716 S.W. 2d 46,47 (Tex. Crim. App.

1986)., coming out of the Court of Criminal Appeals, raised the issue of

exclusive possession. In Cude, Appellant did not rent or own the residence

where drugs were found, nor was he in exclusive possession of the residence

at the time of the drug raid. The police arrested the defendant for delivery of

drugs. Cude v. State, 716 S.W. 2d 46,47 (Tex. Crim. App. 1986). After

obtaining a search warrant, the officers went back to the apartment in which

the defendant had sold drugs to them and found more drugs. Id. The Court

found the evidence insufficient to show that the mere presence of a person at

a residence, not his own, would not constitute control over any contraband

that is found there. Id.

The circumstances in the case at bar are similar to that in Oaks, Allen

and Cude. Appellant ask that this Court apply the same reasoning as in

Oaks, Cude and that of the Third District in Allen, to the facts of the present

case. Officer Wilkerson and Officer Cole, both testified that appellant was

Appeal 10 in the bathroom, not in the same vicinity were the drugs were located. (R.R.

III:72, 111) Neither of the officers testimony, place appellant at any point

during the investigation, in close proximity to the contraband. There was no

testimony that Appellant made furtive gestures or incriminating statements,

in fact both officers admitted that his demeanor was very calm and collected.

Both officers admitted that they assumed, without further investigation, that

the drugs belonged to appellant and not to complainant.

(R.R.III:80,82,84,112) Officer Wilkerson stated that appellant did not

display the behavior of someone hiding something. (R.R. III:71) Appellant

at no point in time attempted to flee the scene, and Officer Cole testified that

they even considered letting appellant leave. (R.R. III:106) The officers did

not testify that they detected an odor of drugs during their investigation, nor

did Appellant have possession of a weapon. Furthermore, there was no

evidence of mail in appellant’s name, clothing belonging to appellant, or any

other evidence linking appellant to the residence found at the apartment.

The apartment where the contraband was found belonged to complainant as

evidenced by her own testimony. The only possible affirmative link, as

mentioned by the Court of Appeals in its opinion, that could tie Appellant to

the drugs was his presence in the apartment when the search ensued, and

Officer Wilkerson’s testimony that the drugs where in plain view. However,

Appeal 11 the logical force of those factors, are not strong enough to link appellant to

the contraband, as the drugs although in plain view, was nowhere near

Appellant. Although appellant was present in the apartment, he was in the

bathroom, which was a closed off area in the apartment. There is no

evidence present as to how long appellant had been in the bathroom. In fact

both officers admitted to not interviewing appellant, because they

automatically assumed the drugs found belonged to appellant. Appellant, as

well as complainant testified that appellant and his child had arrived at the

apartment the night before. The testimony of complainant confirms that

appellant did not have a key to her apartment and the residence belonged to

her and her mother, and not appellant. Nothing in the way of evidence was

presented at trial to connect appellant to the residence. None of the possible

affirmative links in the case at bar, have any applicability to the evidence

adduced at trial.

The Court of Appeals linked Appellant to the contraband by reasoning

that the complainant pointed out the drugs in her apartment. The fact that

complainant pointed officers to the location of the contraband in her

apartment does not affirmatively link Appellant to possession of the drugs

found. Moreover, the fact that complainant told officers that she and

Appellant had been in a relationship off and on, does not link Appellant to

Appeal 12 possession of the residence. The Court of Appeals centered its ruling on

Appellant’s first point of error on these two factors alone. Based on these

two factors, no rational trier of fact could have found beyond reasonable that

Appellant’s connection to the cocaine was more than fortuitous. These

factors do not sufficiently nor do they logically link Appellant to possession

of the drugs in the apartment, under the affirmative links test. The lack of

additional independent facts, coupled with the actions of appellant, his

statements and the given circumstances are insufficient to link him to the

drugs. A reasonable trier of fact accepting the testimony of the State’s

witnesses as true, could not have inferred from the circumstances, that there

were any affirmative links, as required by the Texas Court of Criminal

Appeals, that would tie appellant to the contraband. The “affirmative links

rule” is designed to protect the innocent bystander from conviction based

solely upon his fortuitous proximity to someone else’s drugs. Poindexter v.

State, 153 S.W. 2d 402, 406 (Tex.Crim.App. 2008). The testimony of both

officers at most supposes knowledge, and knowledge that is inferred does

satisfy the requisite culpable mental state for the offense of which appellant

was convicted. Even the Federal Fifth Circuit has taken the position asserted

by Appellant in this matter. In United States v. Jackson, the court stated that

no person should be subjected to punishment unless the evidence is

Appeal 13 sufficient to show beyond reasonable doubt the existence of every fact

necessary to constitute the crime charged. United States v. Jackson, 426

F.2d 305 (5th Cir. 1970). The court in Jones, stated one who owns or

exercises dominion or control over the premises where drugs are found may

be deemed to possess those drugs. United States v. Jones, 133 F.3d 358 (5th

Cir. 1998). Appellant’s knowledge of the mere presence of the drugs is

insufficient to establish the requisite mental state, which is knowledge of his

possession of the drugs. In addressing and balancing the factors set out by

Tex. Health & Safety Code Ann. § 481.112(a), as well as viewing the

evidence in the light most favorable to the prosecution, a rational trier of fact

could not have found that appellant had actual care, custody, control or

management of the drugs beyond a reasonable doubt.

ARGUMENT

II. The evidence presented was legally insufficient to prove the requisite intent for the offense of unlawful possession of a firearm by a felon.

In reviewing the legal sufficiency of the evidence, we examine the

evidence in the light most favorable to the verdict and determine whether

any rational trier of fact could have found the essential elements of the

Appeal 14 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979). 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. Id. at 319. The trier

of fact is the sole judge of the weight and credibility of the evidence. Brown

v. State, 270 S.W. 3d 564, 568 (Tex.Crim.App. 2008). The critical inquiry is

whether, after so viewing the evidence, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. In

analyzing whether the evidence was factually sufficient to support the

conviction, we must determine “whether a neutral review of all the evidence,

both for and against the finding, demonstrates that the proof of guilt is so

obviously weak as to undermine confidence in the jury’s determination, or

the proof of guilt, although adequate if taken alone, is greatly outweighed by

contrary proof.” Johnson v. State, 23 S.W. 3d 1, 11 (Tex. Crim. App. 2000).

To establish the offense of unlawful possession of a firearm by a

felon, the State must show that the defendant was previously convicted of a

felony offense and possessed a firearm after the conviction and before the

fifth anniversary of the person’s release from confinement. Tex. Penal Code

Ann. § 46.04(a)(1). The penal code defines possession as actual care,

Appeal 15 custody, control or management. Tex. Penal Code Ann. § 1.07(a)(39). A

person commits a possession offense only if he voluntarily possesses the

prohibited item. Tex. Penal Code Ann. § 6.01(a). Possession is voluntary if

the possessor knowingly obtains or receives the thing possessed or is aware

of his control of the thing for a sufficient time to permit him to terminate his

control. Id. at § 6.01(b). If the firearm is not found on the defendant’s

person or is not seen in the defendant’s exclusive care, custody, control, or

management, as in this case, the State must offer additional, independent

facts and circumstances that link the defendant to the firearm. Bates v. State,

155 S.W. 3d 212, 216-17 (Tex. App. – Dallas 2004). The purpose of linking

the accused to the firearm is to protect innocent bystanders from conviction

solely on their fortuitous proximity to the firearm. Poindexter v. State, 153

S.W. 3d 402, 406 (Tex.Crim.App. 2005). Such links may be established by

either direct or circumstantial evidence. Evans v. State, 202 S.W. 3d 158,

161-62 (Tex.Crim.App. 2006). An appellate court examines factors such as

whether the firearm was in plain view, whether the defendant owned the

premises where the firearm was found, whether the defendant made

incriminating statements, whether the defendant was in close proximity to

the firearm and had ready access to it, whether the defendant attempted to

flee, whether the defendant’s conduct indicated a consciousness of guilt,

Appeal 16 whether the defendant had a special connection to the firearm, and whether

the firearm was found in an enclosed space. Smith v. State, 176 S.W. 3d 907,

916 (Tex.App. – Dallas 2005). Significantly, 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. Id.

It is obvious from testimony that Appellant did not have exclusive

possession of the two firearms found at the residence. We must therefore

apply the affirmative links test to the case at bar. When considering the

logical force of the factors set out by precedence, the evidence is legally

insufficient to link appellant to the firearms found at complainant’s

residence. A close look at the evidence presented at trial, shows that one of

the firearms found was found in plain view by Officer Cole. However, when

viewing the circumstances logically, this factor does not help to establish

whether appellant had knowledge of possession of the firearm. Moreover,

the testimony puts appellant in a closed in bathroom, which was a good

distance from the firearm found. When analyzing the other possible

affirmative links, none set up the elements of unlawful possession of a

firearm by a felon. The evidence presented at trial did not establish

appellant’s ownership of the premises. Officer Wilkerson and Officer Cole,

both admitted to assuming that appellant was resident of the premises.

Appeal 17 Neither officer could confirm that appellant lived at the residence, and the

State did not present evidence of a lease or other documents linking

ownership to appellant. The uncontroverted testimony of complainant

confirms that appellant did not have access or ownership rights to the

residence. (R.R. IV:7) Appellant never made any statements in regards to

either firearm belonging to him. (R.R. III:90,114) Both officers admit that

when they encountered appellant was not in close proximity to either

firearm, and at no point did he attempt to flee the residence. (R.R. III:72)

When questioned as to appellant’s behavior, Officer Wilkerson stated he was

not nervous, hostile and did not appear to be hiding anything. (R.R. III:71)

Officer Cole testified similarly that appellant appeared to confused as to

situation, only displaying knowledge of the argument he and complainant

had the night before. The State failed to present evidence as to whether

appellant had a special connection to the firearm found.

Officer Wilkerson, through his own testimony admitted that he failed

to dust the guns for fingerprints to confirm whether complainant or appellant

had ever possessed either gun. (R.R. III:90-91) Officer Wilkerson did testify

that he requested identification from appellant and that he saw him pull it out

of a gray coat. (R.R. III:45) Officer Wilkerson later found the other firearm

in that same gray coat. This factor appears to possibly link appellant to the

Appeal 18 other firearm found. However, the inconsistent testimony of Officer

Wilkerson, coupled with complainant and appellant’s testimony, eliminates

reasonableness of this factor. The testimony of Officer Wilkerson is

controverted by the testimony of appellant, who states that his identification

was in his pants pocket, along with the rest of the items he brought with him.

(R.R. III:166-167) Furthermore, complainant testifies that appellant was not

wearing a jacket on when he came to her home. (R.R. IV:6-7) The testimony

of Officer Cole also conflicts with that of Officer Wilkerson’s testimony, in

regards to the gray coat and the finding of the second firearm. Officer Cole

states, “I hear my partner, “You gonna try to shoot me?” (R.R. III:109) He

further states, “I go in a couple of steps and he’s showing me the other

pistol. He’s trying to go in the coat.” (Id.) Officer Cole’s testimony paints a

picture of Officer Wilkerson seeing the weapon in an open area, almost

surprisingly, before he makes the statement “You gonna try to shoot me?”

This is inconsistent with Officer Wilkerson’s version of the facts, as he

stated he searched the coat and then found the gun. (R.R. III:46) Officer

Cole further testifies that he never saw appellant in possession of the coat.

(R.R. III:109-110)

As stated earlier, what determines whether the elements of the

offense have been established is, the logical force of the factors that are

Appeal 19 present. When viewing all of the evidence in the light most favorable to the

prosecution, giving full play to the responsibility of the trier of fact to

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts, the evidence presented was

legally insufficient for a rational jury to have found beyond a reasonable

doubt that appellant possessed either firearm.

PRAYER

Wherefore, premises considered, because there is nothing, even

viewing the evidence in the light most favorable to the verdict, linking

appellant to the contraband found at the residence, appellant respectfully

prays that the Court hold the evidence before it to be legally insufficient,

reverse the judgment of the trial court, and render a judgment of acquittal.

Respectfully Submitted,

THE LAW OFFICE OF DARIAN HOWARD, PLLC P.O. Box 411252 Dallas, Texas 75241 (214) 372.3333 (Telephone) (214) 372.3320 (Facsimile)

/s/ Darian Howard .

Darian Howard State Bar No. 24067669

ATTORNEY FOR KENNETH TURNER

Appeal 20 Certificate of Service

I hereby certify that a true and correct copy of this instrument

was forwarded via certified mail to all counsel of record on this the 17th

day of August 2015.

/s/ Darian Howard Darian Howard

Certificate of Compliance

I hereby certify that this Petition conforms to the requirements

of TRAP 9, and consist of 4,282 words per TRAP 9.4(i)(2)(D).

Appeal 21 Affirmed and Opinion Filed October 29, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01486-CR No. 05-13-01487-CR KENNETH RAY TURNER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F13-51238-H & F13-51239-H

MEMORANDUM OPINION Before Justices Bridges, Francis, and Myers Opinion by Justice Bridges Kenneth Ray Turner appeals his convictions for possession of cocaine with the intent to

deliver in cause number 05-13-01486-CR and unlawful possession of a firearm by a felon in

cause number 05-13-1487-CR. A jury convicted Turner, and the trial court sentenced him to

thirty-five years’ imprisonment for the possession of cocaine with intent to deliver and ten years’

imprisonment for the unlawful possession of a firearm by a felon, to run concurrently. In two

points of error, Turner challenges the sufficiency of the evidence to support both of the trial

court’s judgments. We affirm the trial court’s judgments. Because all dispositive issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4.

On the morning of January 9, 2013, complainant, Maytrice Smith, called the Dallas

Police Department regarding a domestic disturbance with a weapon. Dallas police officers Robert Wilkerson and Stephen Cole responded and arrived at Smith’s apartment around 5:50

a.m. When the officers knocked on the apartment door, Smith answered the door upset, and

whispered that Turner was sitting on the commode, he had hit her the night before, and he had a

loaded gun on the dresser in the bedroom. Both officers could see Turner in the bathroom

because the bathroom door was ajar. The officers entered the apartment and Cole secured the

weapon, a 9 mm Glock handgun loaded with hollow point bullets, from the bedroom. Wilkerson

approached Turner while Cole interviewed Smith.

Smith told Cole that she and Turner both lived at the apartment together, they had argued

the night before, Turner physically assaulted her, and when she tried to call for help, Turner took

the phone away and would not allow her to call the police. Eventually, Smith and Turner both

fell asleep, and when Smith awoke at 5:00 a.m., she called the police. While being interviewed

by Cole, Smith told Cole that Turner had “dope” in the bedroom on the dresser.

Wilkerson made contact with Turner while he was in the bathroom. Assuming he was

going to arrest Turner to prevent further family violence, Wilkerson escorted Turner into the

bedroom so that Turner could get dressed. Upon entering the bedroom, Wilkerson observed a

brown paper lunch bag, full of what he believed to be marijuana and crack, sitting on the dresser.

Wilkerson reported that when asked, Turner retrieved his identification from a jacket on the

bedroom floor. Wilkerson allowed Turner to dress before hand-cuffing him. Wilkerson then

picked up the jacket from the floor and noticed it felt heavy. Before handing the jacket to Turner,

Wilkerson examined the jacket for contraband and found another loaded handgun in the same

pocket where Turner had earlier retrieved his identification; this one a Smith & Wesson .40

caliber pistol with a 13-round clip. Wilkerson placed Tuner under arrest, escorted Turner outside,

and secured him in the patrol car.

–2– After Turner was escorted outside, Smith told Cole there were more drugs in the

bedroom, and said she did not want any of “his drugs” to remain in the apartment. She told Cole,

“He’s cooking the drugs all the time.” She went into the bedroom and showed Cole where to find

a black box that contained marijuana, crack cocaine, and other paraphernalia. Smith told Cole, “I

don’t want none of this in here. Take all that.” Smith also directed Cole to a substantial amount

of cash.

The State introduced evidence of Turner’s prior convictions. Turner was convicted: 1) on

July 6, 2004 for unlawful possession of cocaine with intent to deliver and received five years’

imprisonment; 2) on July 6, 2004, for unlawful possession of PCP and received five years’

imprisonment; 3) on October 29, 2004, for unlawful possession of codeine and received five

years’ imprisonment; 4) on September 18, 2008, for unlawful possession of MDMA 3, 4-

methylenedioxy methamphetamine with intent to deliver and received ten years’ imprisonment;

5) on September 18, 2008, for unlawful possession of 400 grams of cocaine with intent to deliver

and received ten years’ imprisonment; and finally 6) on September 18, 2008, for unlawful

possession of a firearm by a felon and received four years’ imprisonment. Turner testified he was

released from prison in February 2011.

At trial, Marcella St. John, an undercover narcotics officer with the Dallas Police

Department clandestine lab squad, testified concerning the packaging and sale of marijuana and

crack cocaine. St. John testified cocaine is cooked into a solid “cookie” of crack and then further

broken down into smaller sizes to be distributed. St. John testified “your street-level user” would

not be in possession of a “cookie” because they are addicts and “they smoke it as soon as they

get it.” She further explained that finding a “cookie” indicates the person is a dealer. St. John

testified the different colored baggies were used to indicate the amount of crack in each bag –

“It’s happening so fast . . . they don’t want to have to think about it . . . .” St. John reviewed the

–3– evidence found in the apartment—a scale, marijuana in various sized bags, various colored

baggies, rocks of crack in various sizes, a bigger “cookie” of crack, the loaded handguns, the

box—and stated, “it’s my opinion, based on everything that I have in front of me, it’s definitely

the tools of the trade of somebody that’s distributing.”

Turner was charged with possession of cocaine with intent to deliver, use of a deadly

weapon, and unlawful possession of a firearm by a felon. A jury convicted Turner on the

possession of cocaine with intent to deliver and the unlawful possession of a firearm; these

appeals followed.

In both points of error, Turner argues the evidence is insufficient to support his

convictions for possession of cocaine with the intent to deliver and unlawful possession of a

firearm by a felon. When 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 elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim.

App. 2011). It is the responsibility of the jury to fairly 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. We may not substitute our judgment for that of the fact finder

regarding the credibility of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999). The fact finder may choose to believe or disbelieve all or any part of any witness’

testimony. Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.—Dallas, 2003, no pet.).

Turner’s first point of error argues the evidence is legally insufficient to prove his guilt

beyond a reasonable doubt. Specifically, Turner complains the evidence fails to establish enough

affirmative links to connect him with the cocaine found at the apartment.

–4– To prove the unlawful-possession-of-a-controlled-substance element of the charged

offense in this case, the State was required to prove that: 1) Turner exercised control,

management, or care over the four grams or more of cocaine; and 2) Turner knew that the matter

possessed was cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010);

Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). Because Turner was not in

exclusive control of the apartment, the State was also required to prove beyond a reasonable

doubt that Turner’s connection to the cocaine “was more than just fortuitous.” Id. The number of

factors linking Turner to the contraband is less important than the logical force with which all the

evidence, both direct and circumstantial, connects Turner to the contraband. Manivanh v. State,

334 S.W.3d 23, 27 (Tex. App.—Dallas 2008, pet. ref’d). Possible affirmative 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 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. Id.

Turner argues the evidence fails to establish any affirmative links between him and the

cocaine. We disagree. Viewed in the light most favorable to the verdict, the evidence reveals

facts and circumstances which link Turner to the offense. Regarding Turner’s right to possess the

place where the drugs were found, although the apartment lease was not in Turner’s name, Smith

–5– reported she and Turner had been in a relationship “off and on” for over nine years and Turner’s

son was asleep on the couch. As for proximity, the apartment was very small and the bag with

the marijuana and cocaine was in plain view and on the dresser beside the loaded weapon that

Smith reported Turner used to threaten her. Both officers reported that Smith told them the

drugs belonged to Turner and she wanted all of his drugs out of the apartment. Further, after

Turner was handcuffed and taken out of the apartment, Smith voluntarily directed the officer to

the hidden black box containing more drugs, paraphernalia, and a substantial amount of cash

belonging to Turner. We conclude that these facts and circumstances sufficiently link Turner to

the cocaine. See Manivanh, 334 S.W.3d at 27. Consequently, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at

319. We overrule Turner’s first point of error.

In his second point of error, Turner argues the evidence fails to establish the offense of

unlawful possession of a firearm by a felon. Specifically, Turner argues there is no evidence

affirmatively linking Turner to the firearms. The jury was charged, and found the evidence

proved beyond a reasonable doubt, that Turner was a convicted felon and he intentionally or

knowingly possessed a firearm after conviction and before the fifth anniversary of his release

from confinement or parole following conviction of the felony. See TEX. PENAL CODE ANN. §

46.04 (West 2011). In cases involving unlawful possession of a firearm by a felon, we analyze

the sufficiency of the evidence under the rules adopted for determining the sufficiency of the

evidence in unlawful possession of a controlled substance cases. See Young v. State, 752 S.W.2d

137, 140 (Tex. App.—Dallas 1988, pet. ref’d).

Viewed in the light most favorable to the verdict, the evidence reveals facts and

circumstances which link Turner to the firearms found in the apartment. The initial call to the

Dallas Police Department was a request for assistance by Smith claiming Turner had physically

–6– assaulted her and had a loaded weapon. The first handgun was found on the bedroom dresser, in

plain view, next to a bag of contraband, exactly where Smith told the officers the gun was

located. The second weapon was found in the same jacket pocket that Turner used to retrieve his

identification when asked by the officer. We conclude that these facts and circumstances

sufficiently link Turner to the firearms. See Young, 752 S.W.2d at 140. It is undisputed that

Turner has multiple prior felony convictions within the temporal proximity to January 8, 2013.

Consequently, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We overrule Turner’s second point of

error.

We affirm the trial court’s judgment.

DO NOT PUBLISH /David L. Bridges/ TEX. R. APP. P. 47. DAVID L. BRIDGES 131486F.U05 JUSTICE

–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KENNETH RAY TURNER, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-13-01486-CR V. Trial Court Cause No. F13-51238-H. Opinion delivered by Justice Bridges. THE STATE OF TEXAS, Appellee Justices Francis and Myers participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered October 29, 2014.

–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KENNETH RAY TURNER, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-13-01487-CR V. Trial Court Cause No. F13-51239-H. Opinion delivered by Justice Bridges. THE STATE OF TEXAS, Appellee Justices Francis and Myers participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–9–