Turner, Kenneth Ray ( 2015 )

PD-0995&0996-15
IN THE
TEXAS COURT OF CRIMINAL APPEALS
KENNETH TURNER
Petitioner
v. NO. PD-0995-15
PD-0996-15
STATE OF TEXAS
Respondent
_____________________
PETITION FOR DISCRETIONARY REVIEW
_____________________
DARIAN HOWARD
SBN: 24067669
P.O. BOX 411252
DALLAS, TEXAS 75241
(214)372.3333 (Telephone)
(214)372.3320 (Facsimile)
darianhoward@yahoo.com (Email)
ORAL ARGUMENT REQUESTED
August 18, 2015
Appeal
TABLE OF CONTENTS
Page
TABLE OF CONTENTS…………………………………………… i
INDEX OF AUTHORITIES………………………………………... ii-iii
STATEMENT REGARDING ORAL ARGUMENT………………. iv
SUMMARGY OF ARGUMENT…………………………………... iv
STATEMENT OF THE CASE…………………..…………………. 1
STATEMENT OF PROCEDURAL HISTORY……………………. 1
GROUNDS FOR REVIEW………………………………………… 1
STATEMENT OF THE FACTS…………………………………… 2-3
ARGUMENT………………………………………………………. 3-19
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……………………………………….. 5-13
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………………………… 14-15
B. Application……………………………………… 15-19
PRAYER…………………………………………………………… 19
CERTIFICATE OF SERVICE…………………………………….. 20
Appeal i
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)…... 6,15
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
Port. 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
Allen v. State, 249 S.W.3d 680 (Tex.App. – Austin 2008)……….…… 8-10
Cude v. State, 716, S.W. 2d 46,47 (Tex.Crim.App. 1986)………………. 10
Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005).….. 13,16
Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008)............... 14
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)................. 16
Appeal ii
STATUTES
Tex. Health and Safety Code 481.112(a)………………………….... 2, 5, 13
Tex. Penal Code Ann. § 46.04(a)(1)…….………………………...... 2, 15
Tex. Penal Code Ann. § 6.01(a)…………………………………….. 15
Tex. Penal Code Ann. § 6.01(b)…………………………………...... 15
Tex. Penal Code Ann. § 1.07(a)(39)………………………………… 15
Appeal iii
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 iv
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 the Third District Court of Appeals ruling in
Allen v. State, 249 S.W.3d 680 (Tex.App. – Austin 2008). In Allen, the
evidence only established that the defendant was present in an apartment in
Appeal 8
which she did not reside when cocaine was found secreted throughout the
house: in a plastic bag within a closed dog food bag in the dining room;
under the kitchen sink; in a kitchen cabinet; and on a platter on top of a
refrigerator. The issue, the court held, is whether the proof at trial showed
“more than a strong suspicion or mere probability of guilt. Allen v. State,
249 S.W.3d 680, 693 (Tex.App. – Austin 2008). Finding that “at best, the
State has only shown the contraband was hidden inside a dog food bag,
without emitting any odor in the owner’s apartment where Allen did not live
and was present for only a few hours…,” the court refused to find that Allen
had knowingly possessed the cocaine. Id. at 694. The same conclusion was
reached as to the drugs found in the kitchen cabinets. Id. at 694-95.
Questioning the State’s failure to produce evidence of Appellant’s
fingerprints on any of the evidence recovered or otherwise connect her to the
contraband, the court held that the State had proved only that Allen had been
present in the same location as the prohibited substance. Id. While
proximity to the contraband, in this case the reasonable deduction that over
her five hour stay in the apartment Allen had likely been in the kitchen on
more than one occasion, is a factor to be considered, the Court returned to
the well established rule that, “Proof of mere proximity to contraband is
insufficient to establish actual constructive possession or the element of
Appeal 9
knowledge.” Id. at 695. The Third District held that this evidence was
legally insufficient to support a conviction for possession of cocaine.
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 Allen and
Cude. Appellant ask that this Court apply the same reasoning as in 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 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
Appeal 10
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,
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
Appeal 11
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
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
Appeal 12
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. 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
Appeal 13
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.
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). 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
Appeal 14
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).
B. Application
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,
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
Appeal 15
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,
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
Appeal 16
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.
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
Appeal 17
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
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
Appeal 18
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
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
Appeal 19
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
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
Appeal 20
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Case # PD-0995-15, PD-0996-15
Case Information
Location Court Of Criminal Appeals
Date Filed 08/17/2015 11:12:14 PM
Case Number PD-0995-15, PD-0996-15
Case Description
Assigned to Judge
Attorney
Firm Name Individual
Filed By Darian Howard
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Darian Howard
Transaction Amount $0.00
Transaction Response
Transaction ID
Order #
Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
Filing Description
Reference Number
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
The petition for discretionary review does not contain a certification of compliance
08/18/2015 with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=16a31be3-1684-4a94-9b48-b461d093c13c[8/18/2015 11:48:07 AM]
Envelope Details
Other 11:46:13 identity of Judge, Parties and Counsel [Rule 68.4(a)]. The petition for discretionary
AM review does not contain a copy of the court of appeals opinion [Rule 68.4(j)]. You
have ten days to tender a corrected petition for discretionary review.
Documents
Lead Document turner.kenneth.PetitionForDiscretionaryReview.pdf [Original]
eService Details
Name/Email Firm Service Type Status Served Date/Time Opened
Darian Howard EServe Sent Yes Not Opened
darianhoward@yahoo.com
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=16a31be3-1684-4a94-9b48-b461d093c13c[8/18/2015 11:48:07 AM]