                                                                    PD-1176-15, PD-1177-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 10/7/2015 11:10:50 AM
                                                                Accepted 10/8/2015 2:33:30 PM
                                                                                ABEL ACOSTA
               NOS. PD-1176-15 & PD-1177-15                                             CLERK

                        IN THE
             COURT OF CRIMINAL APPEALS
                       OF TEXAS
                      AT AUSTIN
               _________________________

                    MALCOLM MCCLENON,
                         Petitioner/Appellant

                               v.

                 THE STATE OF TEXAS,
                       Respondent/Appellee
                _________________________

    On Appeal in Cause Nos. F12-54585-W & F12-54586-W
             from the 363rd Judicial District Court
                   Of Dallas County, Texas
           And on Petition for Discretionary Review
           from the Fifth District of Texas at Dallas
      In Cause Nos. 05-14-00833-CR & 05-14-00834-CR
                _________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             _________________________

                                Counsel of Record:

  Lynn Richardson                   Kathleen A. Walsh
  Chief Public Defender             Assistant Public Defender
                                    State Bar Number: 20802200
  Katherine A. Drew                 133 N. Riverfront Blvd., LB 2
  Chief, Appellate Division         Dallas, Texas 75207-399
                                    (214) 653-3550 (telephone)
                                    (214) 653-3539 (fax)
                                    kwalsh@dallascounty.org

  October 8, 2015
                              LIST OF PARTIES

TRIAL COURT JUDGE
Andrew J. Kupper, Presiding Judge by assignemnt

APPELLANT
Malcolm McClenon

APPELLANT’S ATTORNEYS
AT TRIAL
Matthew Arnold, State Bar No. 00789129
3500 Maple Avenue, Suite 400
Dallas, TX 75219

ON APPEAL
Kathleen A. Walsh, State Bar No. 20802200
Assistant Public Defender
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Dimitri Anagnostis, State Bar No. 24066767
Andrew Novak, State Bar No. 24048695

ON APPEAL
G. Brian Garrison, State Bar No. 24065276

Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                           ii
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
QUESTIONS FOR REVIEW ................................................................................... 2
                                               QUESTION NO. 1

            Whether the Court of Appeals applied an improper standard of
              review when it determined that the evidence was sufficient to
         affirmatively link Appellant to the marijuana without considering all
                             of the evidence in its analysis.

                                               QUESTION NO. 2

            Whether the Court of Appeals applied an improper standard of
             review when it determined that the evidence was sufficient to
         affirmatively link Appellant to the firearm without considering all of
                              the evidence in its analysis.

ARGUMENT ............................................................................................................. 2
         The Court of Appeals' Opinion pertaining to the evidence linking
         Appellant to the marijuana .............................................................................. 3
         The Court of Appeals’ Opinion pertaining to the evidence linking
         Appellant to the firearm ................................................................................... 6
         Conclusion ....................................................................................................... 7
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE ....................................................................... 10
APPENDIX

                                                            iii
                                     INDEX OF AUTHORITIES

Cases
Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................. 2
Jackson v.Virginia,
  443 U.S. 307 (1979) ........................................................................................... 2, 3
McClenon v. State,
 Nos. 05-14-00833-CR, 05-14-00834-CR, 2015 Tex. App. LEXIS 8394
 (Tex. App.—Dallas August 11, 2015) (not designated for publication) ......passim
Merritt v. State,
 368 S.W.3d 516 (Tex. Crim. App. 2012) ............................................................... 3
Wirth v. State,
 361 S.W.3d 694 (Tex. Crim. App. 2012) ........................................................... 3, 8




                                                         iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW Malcolm McClenon, Petitioner herein and Appellant before

the Court of Appeals, and respectfully submits this Petition for Discretionary

Review.

               STATEMENT REGARDING ORAL ARGUMENT

      Appellant believes that the facts of the case and the issues raised are such

that oral argument will not significantly aid this Court’s consideration and

disposition of this Petition.

                           STATEMENT OF THE CASE

      A jury convicted Appellant of the offense of possession of marijuana in the

amount of fifty pounds or less but more than five pounds enhanced by a prior

conviction for aggravated assault, and the offense of unlawful possession of a

firearm by a felon and assessed punishment at 15 years’ imprisonment in the

marijuana case and 10 years’ imprisonment in the firearm case. (RR5: 29-30, 70-

71; CR: 68; CR1: 69). The jury also found that Appellant used or exhibited a

deadly weapon in the marijuana case. (RR5: 30; CR: 70-71).

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On August 11, 2015, in a memorandum opinion, the Court of Appeals for

the Fifth District of Texas affirmed Appellant’s conviction. McClenon v. State,
Nos. 05-14-00833-CR, 05-14-00834-CR-CR, 2015 Tex. App. LEXIS 8394 (Tex.

App.—Dallas August 11, 2015) (not designated for publication). (See Appendix).

No motion for rehearing was filed. This Petition is timely if filed on or before

October 12, 2015.1

                             QUESTIONS FOR REVIEW

                                    QUESTION NO. 1

          Whether the Court of Appeals applied an improper standard of
            review when it determined that the evidence was sufficient to
       affirmatively link Appellant to the marijuana without considering all
                           of the evidence in its analysis.

                                    QUESTION NO. 2

          Whether the Court of Appeals applied an improper standard of
           review when it determined that the evidence was sufficient to
       affirmatively link Appellant to the firearm without considering all of
                            the evidence in its analysis.

                                       ARGUMENT

       While an appellate court reviews the evidence in the light most favorable to

the verdict, that court must review all of the evidence to 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, 319 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Evaluating the evidence in the light



1
 Appellant’s motion for extension of time in which to file the Petition for Discretionary Review
was granted by this Court on September 14, 2015.
                                               2
most favorable to the verdict is not the same as looking only to the State’s evidence

of guilt and ignoring the defense evidence. An appellate court cannot only

emphasize evidence that favors it’s holding while ignoring controverting

testimony. See Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012)

(finding that a court of appeals incorrectly applied the Jackson standard by

employing a “divide-and-conquer” approach which failed to consider all of the

evidence); Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012) (reversing

a court of appeals for selectively emphasizing “snippets of the record that

ostensibly favored its holding” while ignoring controverting testimony).

      In rejecting Appellant’s challenge to the sufficiency of the evidence to

affirmatively link him to the marijuana and firearm found hidden in the house in

which Appellant had been staying, it is clear from the opinion that the Fifth Court

of Appeals applied an improper standard of review when it considered only the

evidence which tended to support the verdict and did not discuss or analyze the

controverting evidence which refuted any connection between Appellant and the

contraband.

The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to
the marijuana.

      Although the court of appeals properly states that Appellant was present

when the search was conducted and that marijuana was found hidden beneath an

unfinished stairway in the back of the house and in a hidden compartment in the
                                         3
dining room, the court failed to consider and discuss the fact that the evidence also

showed that there were two other occupants in the house at the time of the search

(RR3: 42-43); that Appellant did not have the exclusive custody and control of the

house, nor any ownership interest in the house (RR3: 44-45, 49-50; RR4: 22-25,

32, 87-88); that the owner of the house, along with other workers, had complete

access to the house while Appellant was staying there (RR4: 24, 87-88); or that the

officers failed to find any personal items tying Appellant to the house. (RR3: 156-

57). McClenon, 2015 Tex. App. LEXIS 8394 at *10-11.The court of appeals also

failed to consider and discuss the fact that the marijuana behind the stairs could not

be seen unless someone was going up the stairs or the fact that Appellant would

have never gone up the stairs because the stairs were still under construction and

did not lead to anything. (RR3: 90-91). Id. Although the court appears to consider

the fact that the marijuana found in the dining room was in a hidden compartment

in the wall which could not be seen by a person walking through the room, the

court discounts the significance of this evidence by referring to testimony from the

officers that the house as “pretty small” and the marijuana was hidden in such as to

be accessible only to one who exercised control over the house without

acknowledging the fact that Appellant did not have the exclusive custody and

control of the house. Id.




                                          4
      In its opinion, the court of appeals points to the officer’s testimony regarding

the odor of marijuana in the house and the fact that the marijuana found was a

high-grade variety that is more expensive, stronger, and more pungent than

“regular” marijuana, thus giving off a distinct odor which someone living in the

house would have been aware without giving any consideration to the fact that the

evidence also showed that Appellant was an admitted “pothead” who smoked

regularly and thus would not consider the odor of marijuana in the house to be

significant or indicative of anything other than his own use. (RR3: 48; RR4: 35,

37-39, 49-50, 57, 65, 67, 69-73, 81). Id.

      In its opinion, the court of appeals refers to the fact that the officers found a

large number of baggies and a scale, suggesting that the marijuana was being

broken down, packaged, and sold out of the house; however, the court did not

consider or discuss the fact that the plastic baggies were found strewn about in a

closed closet where there was no marijuana or identifying information found, or

the fact that one of the officers testified that someone who was not a police officer

may have placed no significance on the empty bags in the closet and just thought

that someone was saving bags. (RR3: 180-81). Nor did the court consider or

discuss the fact that there was no specific testimony regarding where the scale was

found and whether it was found with the baggies. (RR3: 93, 116-17). Id. at *11.




                                            5
      In its opinion, the court of appeals refers to the fact that $975 in cash was

found in various denominations during the search but does not consider or discuss

the fact that no officer could testify where the money had been found. (RR3: 153-

55). Id. at *11-12.

      And finally in its opinion, the court of appeals refers to the fact that text

messages indicative of drug transactions and photos of money and a gun were

found on the two cell phones seized from the residence without considering or

discussing the fact the photos and text messages on the phones were not connected

to Appellant in any way but were connected to Dominque Sharper, one of the other

occupants present in the residence at the time of the search. (RR3: 164-72, 174-75;

State Exhibits 45 thru 62). Id. at *9.

The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to
the firearm.

      In its analysis of the evidence pertaining to the firearm, the court of appeals

correctly refers to the fact that the gun was found along with some of the marijuana

in the hidden compartment in the dining room and the officer’s testimony that a

person walking through the dining room would not have known about the hidden

compartment but discounts such evidence by referring to the officer’s testimony

regarding the strong, pungent odor that would have been apparent to anyone in the

house and the fact that Appellant expressed his familiarity with the type of

marijuana seized in this case. McClenon, 2015 Tex. App. LEXIS 8394 at *14-15.
                                         6
The court also refers to Kelly’s testimony that about a week before the arrest, he

went to the house and saw a firearm in the back of the house where the remodeling

work was being done. Id. at *15. What the court fails to consider or discuss in its

analysis is the fact that other people not only had access to the house but were

present in the house both when the firearm was found by the officers, and when

Kelly saw a gun in the house a week prior to the arrest. The court also fails to

consider or discuss the fact that no fingerprints were taken from the gun and no

fingerprints were taken from the compartment in the wall in which the gun was

found. (RR3: 131-32). And finally, the court fails to consider or discuss the fact

that the only evidence directly linking anyone to the firearm were the pictures

found on Sharper’s phone showing Sharper holding a gun and money or Officer

Wagner’s testimony that there was a pretty clear connection between Sharper and

the gun since the photo of the gun on Sharper’s phone appeared to be the same gun

that was seized from the residence. (RR4: 14).

Conclusion.

      As set forth above, there was a significant amount of evidence which the

Court of Appeals failed to consider or discuss in its sufficiency review. Proper

consideration of this evidence would indicate that the State failed to present

sufficient evidence to affirmatively link Appellant to either the marijuana or the

firearm found hidden in the house. Appellant’s mere presence in the house does

                                        7
not link him to contraband found hidden in its bowels. While it would be

reasonable to infer that Appellant had some connection to the house as a tenant

because he had been staying there for the past two and half weeks, there is also

evidence that other people were connected to the house, including the owner and

other workers who were working on the remodeling project in the house. Even

when Appellant was arrested, he was not alone at the house; both Sharper and

Kelly were there with him. Furthermore, the only evidence linking anyone to either

the drugs or the firearm was unnequivocal evidence from Sharper’s own cell

phones showing Sharper to be the one in possession of the contraband.

Consequently, this Court should conduct an independent review of the sufficiency

of the evidence in these cases. Wirth, 361 S.W.3d at 698. In the alternative, this

Court should remand this case to the Court of Appeals with instructions to conduct

a proper sufficiency review.




                                        8
                                PRAYER FOR RELIEF

       For the reasons herein alleged, Appellant prays this Court grant this petition

and, upon review, reverse the decision of the Court of Appeals.

                                            Respectfully submitted,

                                            /s/ Kathleen A. Walsh
                                            Kathleen A. Walsh
Lynn Richardson                             Assistant Public Defender
Chief Public Defender                       State Bar No. 20802200
Dallas County                               Dallas County Public Defender’s Office
                                            Frank Crowley Courts Building
                                            133 N. Riverfront Blvd., LB-2
                                            Dallas, TX. 75207-4399
                                            (214) 653-3550 (telephone)
                                            (214) 653-3539 (fax)


                            CERTIFICATE OF SERVICE

       I hereby certify that on the 7th day of October, 2015, a true copy of the

foregoing petition for discretionary review was served by electronic delivery to

the Appellate Division2 of the Dallas County Criminal District Attorney’s Office

at DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to

Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov.



                                            /s/ Kathleen A. Walsh
                                            Kathleen A. Walsh


2
 G. Brian Garrison, the original State’s attorney on appeal, is no longer employed by the Dallas
County District Attorney’s Office.
                                               9
                     CERTIFICATE OF COMPLIANCE


      I hereby certify that the word count in this document, which is prepared in

Microsoft Word 2010, is 2,470.

                                     /s/ Kathleen A. Walsh
                                     Kathleen A. Walsh




                                       10
APPENDIX
fi·LexisNexis·
No Shepard's Signa)TM
As of: October 6, 2015 12:42 PM EDT


                                                 Mcclenon v. State
                                     Court of Appeals of Texas, Fifth District, Dallas
                                              August 11, 2015, Opinion Filed
                                        No. 05- 14-00833-CR, No. 05- 14-00834-CR

Repor ter
2015 Tex. App. LEXJS 8394

MALCOLM MCCLENON, Appellant v. THE STATE OF                      Judgment affirmed.
TEXAS, Appellee
                                                                 LexisNexis® Headnotes
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR C ITATION OF
                                                                    Criminal Law & Procedure > ... > Standards of Review >
UNPUBLISHED OPINIONS.                                                Substantial Evidence > Sufficiency of Evidence

Prior Hist ory: [* I ] On Appeal from the 363rd Judicial         HNI In reviewing the sufficiency of the evidence, the
District Court, Dallas County, Texas. Trial Court Cause Nos.     appellate court views all the evidence in the light most
Fl2-54585-W & F12-54586-W.                                       favorable to the verdict and determines whether any rational
                                                                 trier of fact could have found the essential elements of the
                                                                 offense beyond a reasonable doubt. The appellate court
Core Terms                                                       assumes the fact finder resolved conflicts in testimony,
                                                                 weighed the evidence, and drew reasonable inferences in a
marijuana, contraband, deadly weapon, drugs, firearm, door,      manner that supports the verdict. The appellate court also
gun, weapon, proximity, bag, exhibited, phone, possession        defers to the trier of fact's determination of witness
of marijuana, narcotics, factors, pounds, odor, hidden           credibility and the weight to be given their testimony.
compartment, evidence show, arrested, custody, handgun,
knocked, bills, shelf                                               Criminal Law & Procedure > ... > Possession > Simple
                                                                    Possession > Elements

Case Summary                                                        Criminal Law & Procedure > Criminal Offenses > Controlled
                                                                    Substances > Definitions

Overview                                                         HN2 To establish unlawful possession of a controlled
HOLDINGS: [!]-The evidence showed that defendant was             substance, the State must prove that appellant exercised
present when the search was conducted and suggested the          control, management, or care of the substance, and that he
marijuana was being broken down, packaged, and sold out          knew the matter possessed was contraband. The evidence
of the house, and the large number of $20 bills found by         may be either direct or circumstantial, but must show
officers was consistent with someone dealing drugs on a          appellant's connection to the drugs was more than just
$20-a-gram level; [2]-The evidence was sufficient for a          fortuitous. Although appellant's mere presence where drugs
rational jury to find beyond a reasonable doubt that defendant   are found, without more, is insufficient to establish
exercised care, custody, control, or management of the           possession, appellant's proximity to the drugs combined
firearm and the jury was not required to believe defendant's     with other evidence can prove possession beyond a
testimony that he had no idea to whom the handgun                reasonable doubt.
belonged; [3]-The evidence showed that the handgun,
which had been reported stolen, was loaded and ready to be          Criminal Law & Procedure > ... > Possession > Simple
fired.                                                              Possession > Elements

                                                                    Criminal Law & Procedure > Criminal Offenses > Controlled
O utcome                                                            Substances > Definitions
                                               2015 Tex. App. LEXIS 8394, *I



H N3 A nonexclusive list of factors that can be sufficient        "logical force" or degree to which the factors, alone or in
either singly or in combination, to establish possession of       combination, tend to link the accused to the weapon. Factors
contraband include: (I) presence when search is conducted;        that may establish the link include (I) whether the contraband
(2) whether the contraband is in plain view; (3) proximity to     or weapon was in plain view or found on the accused; (2)
and the accessibi lity of the contraband, (4) the accused         the accused's proximity and accessibility to the weapon or
being under the influence of narcotics when arrested; (5)         contraband; (3) whether the accused owned or controlled
possession of other contraband or narcotics when arrested;        the place where the contraband or weapon was found; (4)
(6) incriminating statements made by the accused when             whether the accused made any incriminating statements; (5)
arrested; (7) an attempt to flee; (8) furtive gestures; (9) an    whether the accused tried to flee; and (6) whether the
odor of contraband; (I 0) the presence of other contraband or     accused made furtive gestures.
drug paraphernalia; (11) whether the accused owned or had
the right to possess the place where the drugs were found;           Criminal Law & Procedure > Criminal Offenses >Weapons
(12) whether the place where the drugs were found was                Offenses > Definitions
enclosed; (13) possession of a large amount of cash; (14)            Criminal Law & Procedure > ... > Use of Weapons >
conduct indicating a consciousness of guilt; (15) the quantity        Commission of Another Crime > Elements
of the contraband; and ( 16) whether the accused was the
driver of the automobile in which the contraband was found.       H N6 Tex. Code Crim. Proc. Ann. art. 42. 12. § 3g(a)(2)
The number of factors linking a defendant to contraband is        permits the entry of a deadly weapon finding when it is
not as important as the logical force they create to support      shown that a defendant used or exhibited a deadl.y weapon,
an inference of knowing possession of contraband.                 or he was a party to the offense and knew that a deadly
                                                                  weapon would be used or exhibited. In the context of a
   Criminal Law & Procedure > Criminal Offenses > Weapons         deadly weapon finding, the term "use" means any
   Offenses> Definitions                                          employment of a deadly weapon, even simple possession, if
                                                                  that possession facilitates the associated felony. However,
   Criminal Law & Procedure > ... > Weapons Offenses >
                                                                  the term "exhibit'' requires a weapon to be consciously
    Possession of Weapons > General Overview
                                                                  shown, displayed or presented to be viewed.
H N4 Possession means actual care, custody, control, or
                                                                     Criminal Law & Procedure > Criminal Offenses >Weapons
management, Tex. Penal Code Ann. § J.07{a)(39) . As in
                                                                     Offenses > Definitions
cases involving the possession of a controlled substance,
when an individual is charged with the unlawful possession           Criminal Law & Procedure > ... > Use of Weapons >
of a firearm, the State must prove the accused (I) exercised          Commission of Another Crime > Elements
care, custody, control, or management over the firearm, and
                                                                  H N7 When reviewing the sufficiency of the evidence to
(2) knew the object was a firearm. If the accused is not in
                                                                  support a deadly weapon finding, the issue is whether the
exclusive possession of the area where the contraband or          weapon was found to have facilitated the defendant's
firearm is found, the evidence must link the accused to the       possession and intended distribution of the drugs. The
contraband or weapon. Regardless of whether the evidence          defendant's proximity to the gun at the time of the search is
used is direct or circumstantial, the State must establish that   not dispositive. Likewise, ownership is not necessary to
the accused's connection with the firearm was more than           establish that a defendant used a deadly weapon i111 violation
just fortuitous. Mere presence at the location where the          of Tex. Code Crim. Proc. Ann. art. 42. 12. § 3g. Tihe focus is
contraband is found is insufficient, by itself, to establish      on the proximity of the guns to the drugs, not the proximity
actual care, custody, or control of the contraband. But when      of the guns to the defendant. The appellate court must
combined with other links, either direct or circumstantial,       determine whether the cumulative effect of the factors could
presence or proximity may be sufficient to establish that         have allowed a rational jury to determine that the defendant
element beyond a reasonable doubt.                                used the weapons to protect the drugs and the proceeds
                                                                  therefrom. If the appellate court determines the State failed
   Criminal Law & Procedure > ... > Weapons Offenses >            to show a defendant used a deadly weapon in the commission
    Possession of Weapons > General Overview                      of an offense, it may delete the deadly weapon finding.
   Criminal Law & Procedure > Criminal Offenses > Weapons
   Offenses> Definitions                                          Counsel: For Appellants: Katherine Drew, Kathleen Walsh,
                                                                  Lynn Richardson, Dallas, TX.
H NS There is no set formula to determine what links are
sufficient and the number of links is not as important as the     For Appellees: G. Brian Garrison, Susan Hawk, Dallas, TX.

                                                            Page 2 of 7
                                               2015 Tex. App. LEXIS 8394, *I



Judges: Before Justices Fillmore, Myers, and Evans.               reasonable doubt. Jackson v. Virginia. 443 U.S. 307. 313. 99
Opinion by Justice Myers.                                         S. Ct. 2781. 61 L. Ed. 2d 560 (1979); Brooks v. State. 323
                                                                  S. W.3d 893. 899 (Tex. Crim. App. 2010). We assume the fact
Opinion by: LANA MYERS                                            finder resolved conflicts in testimony, weighed the evidence,
                                                                  and drew reasonable inferences in a manner that supports
Opinion                                                           the verdict. Clayton v. State. 235 S. W.3d 772. 778 (Tex.
                                                                  Crim. App. 2007). We also defer to the trier of fact's
                                                                  determination of witness credibility and the weight to be
MEMORANDUM OPINION
                                                                  given [*3] their testimony. Brooks. 323 S. W.3d at 899.
Opinion by Justice Myers
                                                                  HN2 To establish unlawful possession of a controlled
Appellant Malcolm McCJendon was indicted for                      substance, the State must prove that appellant exercised
intentionaEly and knowingly possessing marijuana in an            control, management, or care of the substance, and that he
amount of fifty pounds or Jess but more than five pounds. 1       knew the matter possessed was contraband. See Poindexter
The State alleged appellant used or exhibited a deadly            v. State. 153 S. W.3d 402. 405 (Tex. Crim. App. 2005). The
weapon in the commission of the offense. Appellant also           evidence may be either direct or circumstantial, but must
was indicted for the unlawful possession of a firearm by a        show appellant's connection to the drugs was more than just
felon.2 Appellant pleaded not guilty to the charges and           fortuitous. See Evans v. State. 202 S. W.3d 158. 161-62 (Tex.
pleaded not true to the deadly weapon allegation. The jury        Crim. App. 2006). Although appellant's mere presence
found appellant guilty as charged, made an affirmative            where drugs are found, without more, is insufficient to
deadly weapon finding, and assessed punishment at fifteen         establish possession, appellant's proximity to the drugs
years' imprisonment in the marijuana case and ten years in        combined with other evidence can prove possession beyond
the firearm case. The trial court ordered the sentences to be     a reasonable doubt. See id. at 162.
served concurrently. In three issues, appellant argues the
evidence is insufficient to support the convictions for
                                                                  HN3 A nonexclusive list of factors that can be sufficient
                                                                  either singly or in combination, to establish possession of
possession of marijuana and possession of a firearm by a
                                                                  contraband include: (I) presence when search is conducted;
felon, and that he used or exhibited a deadly weapon during
                                                                  (2) whether the contraband is in plain view; (3) proximity to
the commission of the possession of marijuana offense. (".'2]
                                                                  and the accessibility of the contraband, (4) the accused
We affirm ..
                                                                  being under the influence of narcotics when arrested; (5)
                                                                  possession of other contraband or narcotics whe:n arrested;
D1scuss10N
                                                                  (6) incriminating statements made by the accused when
                                                                  arrested; (7) an attempt to flee; (8) furtive gestures; (9) an
Possession of Marijuana
                                                                  odor of contraband; (I 0) the presence of other contraband or
In his first issue, appellant contends the evidence is            drug paraphernalia; [*4] ( 11) whether the accused owned or
insufficient to support the conviction in 05- 14-00833-CR         had the right to possess the place where the drugs were
for possession of marijuana in the amount of fifty pounds or      found; (12) whether the place where the drugs were found
Jess but more than five pounds. He argues that he was not in      was enclosed; (13) possession of a large amount of cash;
close proximity to the drugs, nor is there evidence the drugs     (14) conduct indicating a consciousness of guilt; (15) the
were found in plain view while appellant was in the home,         quantity of the contraband; and (16) whether the accused
and that he did not have exclusive custody and control of the     was the driver of the automobile in which the contraband
house where the drugs were found. Appellant also argues           was found. See Evans. 202 S. W.3d at 162 n. 12; McOuarters
the other factors do not link him to the contraband.              v. State. 58 S. W.3d 250. 259 (Tex. App.- Fort Worth 2001.
                                                                  pet. refd). The number of factors linking a defendant to
HNI In reviewing the sufficiency of the evidence, we view         contraband is not as important as the logical force they
all the evidence in the light most favorable to the verdict and   create to support an inference of knowing possession of
determine whether any rational trier of fact could have           contraband. Taylor v. State. 106 S. W.3d 827. 831 (Tex.
found the essential elements of the offense beyond a              App.- Dallas 2003. rw pet.).

    Cause number 05-14-00833-CR; trial court cause number F12-54585-W.
2
    Cause number 05-14-00834-CR; trial court cause number F12-54586-W.

                                                            Page 3 of 7
                                               2015 Tex. App. LEXIS 8394, *4



The evidence in this case shows that at around 11 :30 a.m. on     see the bags of marijuana, but they would be able to see
April 17, 2012, Dallas Police Officer Daniel Foster and           them if they were going up the stairs. Officer Wagner also
several other officers conducted a "knock-and-talk"               discovered a "cutout" with a shelf in the wall of the dining
investigation at a duplex house located at 310 Cumberland         room. The shelf was loose. When he picked up the shelf,
Street, Dallas, Texas. The officers were part of a narcotics      Officer Wagner found a hidden compartment containing
team and their investigation was in response to a "drug           more marijuana [*7] and a gun. The gun was ready to fire.
complaint" the department had received. After Officer             Officer Wagner testified that a person walking through the
Foster knocked on the door, appellant opened the door             room would not know the hidden compartment was there.
"fairly quickly," exited, and closed it behind him. He was        Officer Wagner also testified that they found a scale
talking on a cell phone. The officers could smell the odor of     containing marijuana residue and a large number of empty
marijuana coming from inside the house. In response to            bags that cou ld have been used to break the marijuana down
Officer [*5] Foster's questions, appellant said he lived at the   to sell it on the street. In the living room, officers found a
location. After appellant stepped outside and shut the door,      container inscribed with the phrase, "A friend with weed is
another officer told Officer Foster he had seen someone run       a friend indeed," and a Tupperware container with the word
up and lock the door behind appellant. That officer, Chris        "kush" on it. Another officer, Rebecca Barrios, testified that
Wagner, testified that he had looked through the window           she found mail with appellant's name on it. The mai l, which
into the living room after appellant stepped outside and saw      was found on a coffee table, was addressed to appellant at
a man wearing a white I-shirt run to the front door and lock      an address on Abrams Road, Dallas, Texas, and was dated
it, grab a small bag from the floor area, and then run to the     December 1, 2011. Officers found a Texas Department of
rear of the residence. The bag was later recovered during the     Criminal Justice, Parole Division, "electronic monitoring
search and marijuana was found inside.                            program/daily curfew schedu le" that contained appellant's
                                                                  printed name, TDCJ number, and the same Abrams Road
When Detective Foster asked appellant whether there were          address. The schedule stated it was valid from May 12, 2011
any other people living in the house, appellant admitted          until completed successfully. Officers also found a red cell
there were other people in the house. Appellant knocked on        phone and a black cell phone.
the front door- he discovered it had been locked behind
him- and two other people came out onto the porch area.           A total of $975 in various denominations of currency was
Appellant told Officer Foster he had been renting the house,      found during the search: 35 $20 [*8] bills (totaling $700),
living there for the last two or two and a half weeks, and that   15 $10 bills ($150), 15 $5 bills ($7 5), 40 $1 ($40), and 40
he was working on the house for the "manager," who lived          quarters ($10). Officer Barrios testified that the large
next door. Appellant told the officers the other two              number of $20 bills was consistent with someone dealing
individuals, Dominique Sharper and Michael Kelly, were            drugs on a $20-a-gram level. Additionally, Michael Kelly,
just visiting him. Appellant admitted they had been smoking       appellant's cousin, testified that appellant's financial
 [*6] marijuana but denied there were any other drugs in the      situation was precarious:
house.
                                                                      Q. [PROSECUTOR:] Did he seem to be getting by?
Officer Foster asked appellant for consent to search the              What was his financial situation?
house. Appellant replied that he would prefer they ask the
"manager" for consent to search because he owned the                  A. Really, there was no financial situation.
property; appellant was just renting the apartment from him.
                                                                      Q. What do you mean?
Another officer knocked on the door but they were unable to
make contact with anyone at the next door unit; it appeared           A. He really didn't have money. Didn't have money.
to be vacant. Officer Foster testified that after he informed         You know, what he had is what people wou ld help him
appellant there was probable cause to believe there were              out. I never known him to have since then no more than
drugs inside the house and that the officers cou ld obtain a          30 or $40. To him, it was like he had money.
search warrant, appellant consented to letting the officers
                                                                      Q. 30 or $40 was a lot to him?
search the house.
                                                                      A. Not a lot of money, but he looked at it was enough
Upon commencing the search, the first thing officers found
                                                                      for him to get by that day and probably unti l the next
was ten bags of marijuana shoved under a staircase that was
                                                                      day. "I got money, 30 or $40," you know.
under construction at the rear of the house. Officer Wagner
testified that someone walking down the stairs would not              I'm, "Yeah, okay. You got money."

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                                                    2015 Tex. App. LEXIS 8394, *8



     Q. He was kind of one of those guys that lived day to              onto the porch, and quickly shut the door behind him.
     day?                                                               Another officer observed an individual locking the door
                                                                        behind appellant and then picking up a bag and carrying it
     A Yeah.
                                                                        to the rear of the house. The bag was recovered during the
                                                                        search and marijuana was found inside. Officer Foster
Officers found a total of 5.85 pounds, or 2653.56 grams, of
                                                                        testified that he cou ld smell the odor of marijuana [* ll]
marijuana during their search of the home according to
                                                                        emanating from the house. The evidence showed the
Lauren Woolridge, a drug chemist with the Southwestern
                                                                        marijuana found at the property was of a high-grade quality
Institute of Forensic Sciences. Officer Wagner testified that
                                                                        and that it gave off a strong, pungent odor that would have
the marijuana [*9] was a high-grade variety known as
                                                                        been difficult for the occupants of the house to ignore.
"kush," "hydro," or "popcorn weed," and that it is more
                                                                        Officers also found a large number of baggies and a scale,
expensive, stronger, and more pungent than "regular"
                                                                        and two containers were found in the living room with
marijuana. He testified that such a large amount of a
                                                                        inscriptions indicating they had been used for marijuana.
high-grade marijuana would have given off a distinct odor.
                                                                        The evidence found in the house suggested the marijuana
Given the strong smell, he believed someone living in the
                                                                        was being broken down, packaged, and sold out of the
home would have been aware of the marijuana. Officer
                                                                        house. Appellant told the officers he lived at the location
Wagner also testified that the house was "(p]retty small."
                                                                        and that the other two individuals who were with him were
Woolridge agreed that, at $20 a gram, the estimated value of
                                                                        just visiting. He said he was renting the house from the
the marijuana found in the house would have been
                                                                        "manager" that lived next door, but when officers knoc ked
$53,071.20.
                                                                        on the door to the next-door unit, it appeared to be
                                                                        unoccupied. A total of $975 in various denominations of
Detective Timothy Falk, a narcotics detective with the
                                                                        U.S. currency was found during the search. Appellant,
Dallas Police Department, testified that he obtained a search
                                                                        however, was unemployed at the time of his arrest, and
warrant for the two cell phones seized from the residence.
                                                                        when appellant's cousin, Kelly, was asked about appellant's
He found text messages on both phones that seemed
                                                                        financial situation, he responded, in part, that "there was no
indicative of drug transactions. On the red phone, there were
                                                                        financial situation" and that appellant "really didn't have
pictures of money and a gun similar to the one seized in this
                                                                        money." Other evidence showed that the large number of
case. Detective Falk testified, however, that there were no
                                                                        $20 [* 12] bills found by officers (totaling $700 out of the
text messages or photos on either phone that could be
                                                                        $975 recovered) was consistent with someone dealing drugs
connected to appellant.
                                                                        on a $20-a-gram level. Viewing the evidence in the light
                                                                        most favorable to the verdict, we conclude the evidence in
The evidence showed appellant was present when the search
                                                                        this case is sufficient to link appellant to the marijuana. We
was conducted. A portion of the 5.85 pounds of marijuana
                                                                        overrule appellant's first issue.
recovered from the property was stashed beneath an
unfinished [* IO] stairway at the back of the house. Officer
Foster testified that the bags of marijuana would have been
                                                                        Possession of a Firearm by a Felo11
visible to someone going up the stairs. More marijuana and              In his second issue, appellant contends the evidence is
the gun were found in a hidden compartment in the dining                insufficient to support the conviction for possession of a
room. Officer Foster testified the house was "pretty small,"
                                                                        firearm by a felon.
and the marijuana was hidden in such a way as to be
accessible only to one who exercised control over the house.            The indictment in 05- 14-00834-CR alleged that on or about
Appellant admitted to law enforcement officers, and he                  April 17, 2012, appellant intentionally and knowingly
testified at trial, that he was smoking marijuana on April 17,          possessed a firearm, to wit: a handgun, and that the
2012, when the officers arrived. Officer Foster testified that          possession was before the fifth anniversary of h is release
individuals wi ll sometimes attempt to minimize their guilt             from parole for a prior felony conviction. See TEX. P ENAL
by admitti:ng to the possession of smaller amounts of drugs             CooE ANN. § 46.04(a)(] J.HN4 3''Possession' means actual
while denying any knowledge of larger quantities of drugs               care, custody, control, or management." Id. § /.07(a)(39).
found at a location. Officer Foster also testified that, when           As in cases involving the possession of a controlled
he knocked on the door, appellant opened the door, walked               substance, when an individual is charged with the unlawful

3
    Appellant stipulated to the underlying felony at the beginning of trial, so the only issue before us is whether the evidence is sufficient
to support the possession element.

                                                                  Page 5 of 7
                                               2015 Tex. App. LEXIS 8394, *12



possession of a firearm, the State must prove the accused (I)      back of the house where the remodeling work was being
exercised care, custody, control, or management over the           done. The gun "was sitting on the counter" and "was out in
firearm, and (2) knew the object was a firearm. See Evans.         the open." At the time he saw the firearm, the owner of the
202 S. W 3d at 161; Poindexter. 153 S. W 3d at 405. If the         house, "Mr. D," was at the house and he and appellant were
accused is not in exclusive possession of the area where           outside talking. Kelly had gone into the house looking for
 [* 13) the contraband or firearm is found, the evidence must      the bathroom and went in the wrong direction. He testified
link the accused to the contraband or weapon. Evans. 202           that after he saw the gun he went outside and told appellant
S. W 3d at 162; Poindexter. 153 S. W 3d at 406. Regardless of      and Mr. D, "Hey, somebody needs to go put that up." After
whether the evidence used is direct or circumstantial, the         reviewing the evidence in the light most favorable to the
State must establish that the accused's connection with the        verdict, we conclude the evidence is sufficient for a rational
firearm was more than just fortuitous. Evans. 202 S. W 3d at       jury to find beyond a reasonable doubt that appellant
161 . As we noted earlier, mere presence at the location           exercised care, custody, control, or management of the
where the contraband is found is insufficient, by itself, to       firearm. The jury was not required to believe appellant's
establish actual care, custody, or control of the contraband.      testimony that he had no idea to whom the handgun
Id. at 162. But when combined with other links, either direct      belonged. See Evans. 202 S. W3d at 166. Accordingly, the
or circumstantial, presence or proximity may be sufficient to      evidence is sufficient to support the jury's verdict. We
establish that e lement beyond a reasonable doubt. See id.         overrule appellant's second issue. [* 16)
H NS There is no set formula to determine what links are
sufficient and the number of links is not as important as the      Use or Exhibition of a Deadly Weapon
"logical force" or degree to which the factors, alone or in
combination, tend to link the accused to the weapon. Id.           In his third issue, appellant argues the evidence is insufficient
Factors that may establish the link include (I) whether the        to support the finding in 05- 14-00833-CR that he used or
contraband or weapon was in plain view or found on the             exhibited a deadly weapon during the commission of the
accused; (2) the accused's proximity and accessibi lity to the     possession of marijuana offense.
weapon or contraband; (3) whether the accused owned or
                                                                   H N6 Article 42. 12. section 3g(a)(2) of the Texas Code of
controlled the place where the contraband or weapon was
                                                                   Criminal Procedure permits the entry of a deadly weapon
found; (4) whether the accused made any incriminating
                                                                   finding when it is shown that a defendant used or exhibited
 (".'14) statements; (5) whether the accused tried to flee; and
                                                                   a deadly weapon, or he was a party to the offense and knew
(6) whether the accused made furtive gestures. Id. at 162
                                                                   that a deadly weapon wou ld be used or exhibited. See TEX.
n.12; Poindexter, 153 S. W 3d at 409-12.
                                                                   CoDE CRIM. PRoc. ANN. art. 42. 12. § 3g(a)(2). In the context
The jury in this case cou ld have reasonably concluded             of a deadly weapon finding, the term "use" means any
appellant's connection to the firearm was more than                employment of a deadly weapon, even simple possession, if
fortuitous. The firearm was found, along with some of the          that possession faci litates the associated felony. Coleman v.
marijuana, in a hidden compartment in the dining room.             State. 145 S. W 3d 649. 652 (Tex. Crim. App. 2004); Patter-
Officer Wagner testified that a person walking through the         son v. State. 769 S. W 2d 938. 941 (Tex. Crim. A pp. 1989).
dining room would not have known about the hidden                  However, the term "exhibit" requires a weapon to be
compartment. Appellant testified that because the house was        consciously shown, displayed or presented to be viewed.
being remodeled and only one room was furnished, he was            Coleman. 145 S. W 3d at 652; Patterson. 769 S. W. 2d at 941.
essentially living in one room while he stayed there.
Appellant told the officers that whi le he lived at the 310        H N7 When reviewing the sufficiency of the evidence to
Cumberland Street address, the other two individuals were          support a deadly weapon finding, the issue is whether the
just visiti ng. Although the gun and some of the marijuana         weapon was found to have facilitated the defendant's
were found in the hidden shelf compartment, Officer Foster         possession and intended distribution of the drugs. See
testified that the marijuana seized from the house was a           Coleman. 145 S. W 3d at 655. The defendant's proximity to
high-grade quality and had a strong, pungent odor that             the gun at the time of the search is not dispositive. Id. at
would have been apparent to anyone in the house. Appellant,        654. Likewise, ownership is not necessary to establish that
in fact, expressed [* IS] fami liarity with the type and quality   a defendant used a deadly weapon in violation of article
of the "kush" marijuana seized in this case, stating on            42. 12. section 3g. Smith v. State. 176 S. W 3d 907, 919 (Tex.
cross-examination that he was familiar with it because he          App.- Dallas 2005, pet. refd). The focus is [*l7] on the
was a "pothead." Kelly testified that, about a week before         proximity of the guns to the drugs, not the proximity of the
the arrest, he went to the house and saw a firearm in the          guns to the defendant. See Coleman. 145 S. W 3d at 654-55;

                                                             Page 6 of 7
                                              2015 Tex. App. LEXIS 8394, *17



see also Morerw v. State, 978 S. W.2d 285. 289 (Tex.              weapon to facilitate his possession and intended d istribution
App.- Fort Worth 1998. no pet. ) (defendant "used" weapons        of the narcotics. See Coleman. 145 S. W.3d at 655. Therefore,
found in container lying beside concealed cocaine to facilitate   the evidence in this case is sufficient for the jury to have
his possession of narcotics with intent to distribute). We        concluded appellant used or exhibited a deadly weapon
must determine whether the cumulative effect of the factors       during the commission of the possession of marijuana
cou ld have allowed a rational jury to determine that the         offense. We overrule appellant's third issue.
defendant used the weapons to protect the drugs and the
proceeds therefrom. Coleman. 145 S. W. 3d at 655. If we           We affirm the trial court's judgment.
determine the State fai led to show a defendant used a deadly
weapon in the commission of an offense, we may delete the         Isl Lana Myers
deadly weapon finding. See Drichas v. State. 175 S. W. 3d
                                                                  LANA MYERS
795. 798 CTex. Crim. App. 2006).
                                                                  JUSTICE
Officer Foster testified that they found the handgun hidden
along with a quantity of the marijuana in the shelf
                                                                  Do Not Publish
compartment. A handgun is a deadly weapon per se. TEX.
PENAL CovE ANN. § 1.07(a){/7)(A). Evidence showed that the        TEX. R. APP. P. 47
handgun, which had been reported stolen out of College
Station, was loaded; it had eight rounds in the clip and one      J UDGMENT
in the chamber. The gun was ready to be fired. As Officer
Wagner noted," All you have to do is pull the trigger." Other     Based on the Court's opinion of this date, the judgment of
evidence showed it is very common for people selling drugs        the trial court is AFFIRMED. Judgment entered this 11th
to be armed in order to protect their drug supply. A rational     day of August, 2015.
trier of fact could have found [*I S) that appellant "used" the




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