                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00022-CR

KIMLY RUSHA TERRELL,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-627-C2


                          MEMORANDUM OPINION


      Kimly Rusha Terrell was convicted of possession with the intent to deliver a

controlled substance, cocaine, in an amount of one gram or more, but less than four

grams.   TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West 2010). She was

sentenced to twelve years in prison. Because the evidence is sufficient to support the

elements of possession and intent to deliver, and because the error, if any, regarding

prosecutorial misconduct was not preserved, the trial court’s judgment is affirmed.
                                            BACKGROUND

        While conducting surveillance of another person, an investigator with the Waco

Police Department noticed the person, and many others, frequent a particular residence.

Police conducted a no knock entry on the residence and located cocaine and other items

that indicated the cocaine was being sold from the residence. Terrell lived at the

residence and was home during the police entry.

                                  SUFFICIENCY OF THE EVIDENCE

        Terrell initially complains that the evidence is legally insufficient to support two

specific elements of the offense; that being, whether Terrell exercised care, custody, or

control of the cocaine seized and whether she intended to deliver the cocaine seized.1

        As Terrell recognized, the standard enunciated in Jackson v. Virginia is now the

only standard a reviewing court applies in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010); see Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under

the Jackson standard, a reviewing court should not “ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.” Blackman v. State,

No. PD-0109-10, 2011 Tex. Crim. App. LEXIS 497, *18 (quoting Jackson, 443 U.S. at 318-

1 This Court has tried for a long time to ensure appellants specify the elements of the offense which they
contend the evidence is insufficient to support. See e.g. Turner v. State, 4 S.W.3d 74, 80-81 (Tex. App.—
Waco 1999, no pet.) (“A brief asserting legal or factual insufficiency of the evidence is helpful when it
focuses our attention on the disputed issues, specifies each element of the crime or cause of action, and
specifies which element lacks evidentiary support. The brief should contain a discussion of the relevant
evidence and why that evidence is not sufficient.”). We commend Terrell’s counsel for doing in this
appeal what we have asked to be done. We also are disappointed with the State’s response which
combined Terrell’s separate elements into one argument, lapsing into a routine with which we have tried
to dispense.

Terrell v. State                                                                                   Page 2
19) (emphasis in original). Rather, "the relevant question is whether, after viewing the

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

have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443

U.S. at 319 (emphasis in original).

        Each fact need not point directly and independently to the guilt of a defendant,

as long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.      Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Reconciliation of conflicts and contradictions in the evidence is within the province of

the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury is entitled

to judge the credibility of witnesses, and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.

App. 1991).        Further, the prosecution has no affirmative duty to "rule out every

hypothesis except that of guilt." Blackman, 2011 Tex. Crim. App. LEXIS 497 at *19

(quoting Wright v. West, 505 U.S. 277, 296, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992)).

Possession

        Terrell was charged with the offense of possession of cocaine with the intent to

deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West 2010). A person

commits unlawful possession of a controlled substance when (1) the person (requires

proof of identity) (2) exercises control, management, or care over the substance, and (3)

knows the matter possessed is contraband. See Poindexter v. State, 153 S.W.3d 402, 405

(Tex. Crim. App. 2005). Whether this evidence is direct or circumstantial, "it must

establish, to the requisite level of confidence, that the accused's connection with the

Terrell v. State                                                                          Page 3
drug was more than just fortuitous. Id. at 405-406. In her first issue, Terrell contends

the evidence is insufficient to support the possession element because, she argues, she

did not exercise care, custody, or control of the cocaine found. She does not contest

whether she knew the substance was contraband.

          Facts

          Pursuant to a search warrant, a no-knock entry was made in the early morning

on a house in which Terrell lived. Terrell was found in a bed in one of the bedrooms of

the house and secured until the search was completed. A bill and a receipt located in

the bedroom where Terrell was found indicated that Terrell was the resident of the

house. Mail recovered from trash was in Terrell’s name and listed the address of the

house searched. The utilities of the house were also in her name.

          A scale with a razor blade that field tested positive for cocaine was found in

plain view on a DVD stand in the living room of the house. Immediately beyond this

stand was the bedroom in which Terrell was located. At the end of the bed where

Terrell was found was a table with a tray of loose marijuana. On the dresser2 next to the

bed where Terrell was laying, officers located a digital scale which tested positive for

cocaine. Fingernail polish was located next to the scale. In the open first drawer of the

dresser, officers located a baggie of marijuana and a purse with about $300 cash stuffed

in it. A box of baggies was seized from Terrell’s kitchen table.

          A connecting bathroom was about 4 feet from the bed in which Terrell was

laying. Eric Brooks, a person who was living with Terrell, had barricaded himself in the

2The   State referred to the piece of furniture as a nightstand while the witnesses referred to it as a dresser.

Terrell v. State                                                                                          Page 4
bathroom and apparently ate some cocaine while in the bathroom. Once officers gained

entry to the bathroom and secured Brooks, they located cocaine on the top shelf of a

cabinet in the bathroom. Officers then located on the top shelf of open shelving in the

bathroom an envelope containing $1,000 and a withdrawal slip from a bank.

        Application

        Although Terrell was not in the room where the cocaine was located, there was

evidence that Terrell’s connection to the cocaine was more than just fortuitous. The bills

and utilities of the residence were in her name. A scale and a razor blade which tested

positive for cocaine were on a stand just before entering the bedroom where she was

located. Another scale which tested positive for cocaine was on a dresser right next to

the bed where she was located. Fingernail polish was on the dresser next to the scale,

leading to an inference that the dresser was Terrell’s dresser. Accordingly, the evidence

was sufficient to support the element of possession. Terrell’s first issue is overruled.

Intent to Deliver

        Terrell also contends the evidence is insufficient to prove that she had the intent

to deliver cocaine. Intent to deliver may be established by expert testimony, such as

testimony from experienced law enforcement, and circumstantial evidence, such as

evidence of an accused's possession of the contraband. Moreno v. State, 195 S.W.3d 321,

325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).

        Additional Facts

        Some of the facts that support the element of possession also support the element

of intent to deliver. Those facts do not bear repeating here. Additional facts supporting

Terrell v. State                                                                      Page 5
the intent to deliver element are as follows.

        Investigator John Allovio testified that based on his training and experience, he

believed that the cocaine was being sold from the residence. He based this belief on

many items found in the residence and on the amount of foot traffic and vehicle traffic

at the house. Allovio observed individuals enter the house, remain for about five

minutes, and leave. Allovio testified that typically, cocaine was sold in ½ to one gram

amounts. The cocaine seized was in two separate amounts, 1.10 grams and 1.36 grams.

Some of the cocaine seized was crack cocaine.

        Allovio stated that there was no drug paraphernalia for smoking or otherwise

ingesting crack cocaine found at the residence which would indicate that the cocaine

was for sale and not for personal use. He explained that dealers of cocaine do not use it

because a user would smoke all the cocaine and not make any profit. He further

explained that razor blades, like the one found on the scale in the living room, are used

to cut the cocaine into smaller rocks depending on how much money someone wanted

to spend. He explained that scales are used because the sale of cocaine is based on

weight.

        Allovio also stated that the money stuffed into the purse by the bed was

consistent with selling narcotics, explaining that money is simply stuffed somewhere

when a sale is made.       He further explained that large amounts of cash are also

consistent with drug dealing. Investigator David Starr additionally stated that in his

experience, people who buy and sell narcotics typically deal in cash and that the money

found in the bathroom and in the purse were consistent with drug dealing.

Terrell v. State                                                                   Page 6
        Another officer testified that the use of plastic baggies was also consistent with

drug dealing. Further, during his investigation, Allovio found no evidence of gainful

employment by either Terrell or Brooks.

        On cross examination, Allovio and other witnesses agreed that some of the items

located, such as the baggies and the large amount of cash, were not always indicators of

drug dealing and that the money stuffed into the purse could be consistent with tip

money received from a job. Terrell’s cousin, Latravia Drake, testified that Terrell was

working as a waitress. However, Drake did not recall telling investigators previously

that Terrell was not working at the time of the offense and did not recall having no

explanation for investigators of how Terrell was paying her bills.

        Application

        There is little doubt that the evidence established the cocaine was possessed with

the intent to deliver. The most damning evidence of this element is the presence of not

one, but two, sets of scales with cocaine residue on them. The logical inference is that it

is a distributor that is most interested in the weight of what is being sold, not the user of

a single rock for personal consumption. But the question is whether Terrell was the one

distributing the cocaine. The jury had to evaluate all the evidence.

        We have already held that the evidence that Terrell possessed the cocaine is

sufficient.        As stated previously, some of the evidence of possession also tends to

support the element of intent to deliver. The cumulative effect of the evidence is

compelling. In particular, we note that the money ($300) was found stuffed into a purse

which was sticking out of an open drawer of a dresser where the scale with cocaine

Terrell v. State                                                                       Page 7
residue on it was located which, in turn, was next to a bottle of fingernail polish. A

reasonable inference would be that if this was money from the sale of cocaine, it was

sold by a woman. Terrell’s cousin, Latravia Drake, said Terrell was working as a

waitress, but it was reasonable for the jury to disbelieve this testimony. Evidence

showed that investigators could not determine that Terrell or Brooks were gainfully

employed. It was then also reasonable for the jury to disbelieve Terrell’s theory that the

money in the purse was from tips made as a waitress.

        Further, the evidence showed that some of the cocaine was consumed by Brooks,

but he did not dispose of or consume the cocaine found in the cabinet. Since the

testimony was that typically users use and distributors do not, a logical inference is that

Terrell had hidden the cocaine from Brooks and he simply did not know where it was.

Moreover, Terrell was charged under the law of parties. The evidence amply supports

the conclusion that if Brooks was the distributor, Terrell was not only in possession of

the contraband, but also assisted Brooks in the distribution by supplying the location

from which it was being sold.

        Accordingly, the evidence was sufficient to prove Terrell had the intent to deliver

the cocaine. Her second issue is overruled.

                              PROSECUTORIAL MISCONDUCT

        In her third issue, Terrell alleges that the State engaged in prosecutorial

misconduct which violated her constitutional rights to present a defense. The facts of

the alleged misconduct are somewhat convoluted and relate to a plea agreement with

Brooks. We need not elaborate on the details of the conduct due to the disposition of

Terrell v. State                                                                     Page 8
the issue.

        A timely objection regarding prosecutorial misconduct is necessary to preserve

error for purposes of appeal. Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App.

2010); Watkins v. State, 333 S.W.3d 771 (Tex. App.—Waco 2010, pet. ref’d). There are no

exceptions to this rule. See Estrada, 313 S.W.3d at 303 (where defendant attempted to

use an exception to the objection requirement announced in a jury argument case as an

exception to the objection requirement in a prosecutorial misconduct case, the Court of

Criminal Appeals stated, “We overruled the exception discussed in Willis more than ten

years ago,” and overruled defendant’s issue). Terrell did not object to the alleged

misconduct by the prosecutor.

        Accordingly, error, if any, is not preserved, and Terrell’s third issue is overruled.

                                        CONCLUSION

        Having overruled each of Terrell’s issues on appeal, we affirm the trial court’s

judgment.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 20, 2011
Do not publish
[CR25]




Terrell v. State                                                                       Page 9
