            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

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

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
Envelope Details


  Print this page

  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]
