                                                                    PD-0830&0831-15
                PD-0830&0831-15                           COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                          Transmitted 7/2/2015 4:32:41 PM
                                                            Accepted 7/2/2015 4:58:44 PM
                                                                           ABEL ACOSTA
                     NO._________________
                                                                                   CLERK

                             IN THE

                COURT OF CRIMINAL APPEALS

                           OF TEXAS



                  Kendell NAJEE SIMINGTON
                           Petitioner

                                v.

                     THE STATE OF TEXAS
                          Respondent



   Petition is in Cause Nos. 1327054D & 1327055D from the 396th
               Criminal Court of Tarrant County, Texas,
      and Cause Nos. 02-14-00187-CR & 02-14-00188-CR in the
          Court of Appeals for the Second District of Texas



           PETITION FOR DISCRETIONARY REVIEW



                                     Kimberley Campbell
                                     TBN: 03712020
                                     Factor, Campbell & Collins
                                     Attorneys at Law
                                     5719 Airport Freeway
                                     Phone: (817) 222-3333
                                     Fax: (817) 222-3330
                                     Email: lawfactor@yahoo.com
                                     Attorneys for Petitioner
July 2, 2015                         Kendell Najee Simington
              IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.

Trial Court Judge:                Honorable Elizabeth Beach, Criminal
                                  District Court One, Tarrant County

Petitioner:                       Kendell Najee Simington

Petitioner’s Trial Counsel:       Robin McCarty
                                  TBN: 24034561
                                  Attorney and Counselor at Law
                                  3322-B E. Belknap
                                  Fort Worth, Texas 76107

Petitioner’s Counsel              Kimberley Campbell
on Appeal:                        TBN: 03712020
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Tamla Ray
                                  TBN: 24046687
                                  Michelle Dobson
                                  TBN: 24049075
                                  District Attorney’s Office
                                  401 West Belknap
                                  Fort Worth, Texas 76196

Appellee’s Counsel                James Gibson
on Appeal:                        TBN: 00787553
                                  District Attorney’s Office
                                  401 W. Belknap Street
                                  Fort Worth, Texas 76196


                                    ii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1

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

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

I.       The Court of Appeals erred when found the evidence
         sufficient to prove beyond a reasonable doubt that Petitioner
         was guilty of possession with intent to distribute cocaine. . . . .4

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         C.        Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

         D.        Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

         E.        Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

II.      The Court of Appeals erred when found the evidence
         sufficient to prove beyond a reasonable doubt that Petitioner
         was guilty of possession of a firearm by a felon. . . . . . . . . . . . 12


                                                       iii
         A.        Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

         B.        Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

         C.        Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                    iv
                         INDEX OF AUTHORITIES

Cases                                                                           page

Brown v. State,
     911 S.W.2d 744 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . 8, 12

Evans v. State,
      202 S.W.3d 158 (Tex. Crim. App. 2006). . . . . . . . . . . . . . 6, 8, 9, 10

Jackson v. Virginia,
       443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . 7, 12, 13, 16

Juarez v. State,
       198 S.W.3d 790 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . 7

Olivarez v. State,
      171 S.W.3d 283 (Tex. App.–
              Houston [14th Dist.] 2005, no pet.). . . . . . . . . . . . . . 8, 9, 10

Poindexter v. State,
      153 S.W.3d 402 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . 8, 12, 14

Wise v. State,
      364 S.W.3d 900 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . 7, 13, 16

Wright v. State,
      603 S.W.2d 838 (Tex. Crim. App. 1980). . . . . . . . . . . . . . . . . . . . . 8

Simington v. State,
      02-14-00187-CR, 02-14-00188-CR, 2015 WL 3917829
             (Tex. App.–Fort Worth, June 25, 2015, no. pet. h.)
                    (mem. op., not designated for publication). . . . 2, 6

Smith v. State,
      176 S.W.3d 907 (Tex. App.–Dallas 2005, pet. ref’d). . . . . . . . . . 14




                                          v
Statutes

T EX. H EALTH & S AFETY C ODE A NN. § 481.002(38) (West 2010). . . . . . . 8

T EX. H EALTH & S AFETY C ODE A NN. § 481.112(d) (West 2010). . . . . . . . 1

T EX. H EALTH & S AFETY C ODE A NN. § 481.115(d) (West 2010). . . . . . 1, 7

T EX. P ENAL C ODE A NN. § 1.07(a)(39) (West 2011). . . . . . . . . . . . . . . . . 13

T EX. P ENAL C ODE A NN. § 46.04(a) (West 2011). . . . . . . . . . . . . . . . . . . . 1

T EX. P ENAL C ODE A NN. § 46.04 (West 2011). . . . . . . . . . . . . . . . . . . . . .13




                                           vi
         STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                    STATEMENT OF THE CASE

      Petitioner Kendell Najee Simington (“Mr. Simington” or

“Petitioner”) was charged by two-count indictment with possession of

a controlled substance (cocaine) between four and 200 grams with

intent to distribute, see T EX. H EALTH & S AFETY C ODE A NN. § 481.112(d)

(West 2010), and possession of a controlled substance (cocaine)

between four and 200 grams. See T EX. H EALTH & S AFETY C ODE A NN. §

481.115(d) (West 2010). The indictment included a deadly weapon

allegation and a repeat offender notice. (054 C.R. 6).1 Mr. Simington

was also charged by separate indictment with unlawful possession of

a firearm by a felon. See T EX. P ENAL C ODE A NN. § 46.04(a) (West 2011).

      On April 29, 30 and May 1, 2014, a jury trial was held in Criminal

District Court Number One of Tarrant County, the Honorable Elizabeth



1

References to the Clerk’s Record in Cause Number 1327054D will be
designated as “054 C.R. xx” and references to the Clerk’s Record in Cause
Number 1327055D will be designated as “055 C.R. xx”.

                                    1
Beach presiding. (R.R. II, III, IV, V, & VI: passim). The jury found Mr.

Simington guilty as charged of possession with intent to distribute

cocaine between four and 200 grams, and guilty as charged of unlawful

possession of a firearm by a felon. (054 C.R. 71; 055 C.R. 68; V R.R. 6-7).

The jury found that Mr. Simington did not use or display a deadly

weapon. (054 C.R. 74; V R.R. 6-7). Punishment was to the jury, which

found the repeat offender paragraph to be true based on Mr.

Simington’s plea of true, and sentenced Mr. Simington to thirty (30)

years incarceration on the possession with intent to distribute case and

ten (10) years incarceration on the unlawful possession of a firearm by

a felon case. (054 C.R. 90; 055 C.R. 81; V R.R. 51). A timely Notice of

Appeal was filed on May 1, 2014. (054 C.R. 99; 055 C.R. 90).

            STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Second Court of Appeals affirming Mr.

Simington’s convictions was handed down on June 25, 2015. See

Simington v. State, 02-14-00187-CR, 02-14-00188-CR, 2015 WL 3917829

(Tex. App.–Fort Worth, June 25, 2015, no. pet. h.) (mem. op., not

designated for publication).




                                    2
                      GROUNDS FOR REVIEW

                    GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when found the evidence
      sufficient to prove beyond a reasonable doubt that Petitioner
      was guilty of possession with intent to distribute cocaine.

                   GROUND FOR REVIEW TWO

II.   The Court of Appeals erred when found the evidence
      sufficient to prove beyond a reasonable doubt that Petitioner
      was guilty of possession of a firearm by a felon.

                      REASONS FOR REVIEW

1.    The decision by the Second Court of Appeals has decided an

important question of state law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals.

2.    The Second Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exercise of the Court

of Criminal Appeals’ power of supervision.




                                    3
                             ARGUMENT

              GROUND FOR REVIEW ONE (Restated)

I.    The Court of Appeals erred when found the evidence
      sufficient to prove beyond a reasonable doubt that Mr.
      Simington was guilty of possession with intent to distribute
      cocaine.

      A.     Facts

      In May of 20013, Travis Varrett (“Varrett”), a narcotics officer

with the Fort Worth Police Department, received information from a

confidential informant that narcotics were being distributed from an

apartment at 6043 Stoneybrook, in Tarrant County. (IV R.R. 36). Based

on that information, Varrett and his partner, Officer Bruce Anderson

(“Anderson”), conducted surveillance on multiple occasions at the

location and discovered that the activities and traffic taking place at the

location were consistent with illegal narcotics trafficking. (IV R.R. 36).

The officers then conducted at least two controlled buys of narcotics

from the apartment, whereby confidential informants would make

purchases from the location under the direction, observation and

control of officers Varrett and Anderson. (IV R.R. 41-43).

      Based on the information obtained from their surveillance,

confidential informants, and controlled buys, Varrett and Anderson


                                     4
were able to obtain a search warrant for the apartment located at 6043

Stoneybrook. (IV R.R. 43-44; VI R.R. St. Ex. 39).

      The search warrant was executed at the apartment located at

6043 Stoneybrook on May 16, 2013. (IV R.R. 46). Varrett and Anderson

conducted the search of the premises pursuant to the search warrant,

and recovered cocaine packaged for resale, plastic baggies of the type

used in narcotics trafficking, scales with cocaine residue of the type

used for weighing narcotics for distribution, drug trafficking records,

loose currency, cellular telephones, and a pistol. (IV R.R. 50, 51, 55, 58,

59-60, 64). Petitioner, as well as a female named Delisha Bennett, were

present at the scene of the search and were taken into custody. (IV R.R.

49). The loose currency, packaged drugs, cellular telephones, drug

records, one scale and the pistol were located on the floor between a

couch (where Delisha Bennett was seated) and a recliner (where

Petitioner was seated). (IV R.R. 99-101, 105-106). A search of Petitioner

revealed that he had approximately $600 in his pants pocket in small

denominations. (IV R.R. 52, 53).

      At trial, Varrett admitted that none of the controlled drug buys

had been from Petitioner, and that Petitioner had not been named or



                                     5
described by his confidential informants as a person selling narcotics.

(IV R.R. 71-73, 75). In fact, prior to the execution of the search warrant,

Mr. Simington had not come to the attention of the police in regards to

the apartment or narcotics trafficking. (IV R.R. 75, 79, 95-96).

      Mr. Simington’s fingerprints were not discovered on any of the

items seized by the police, nor were his fingerprints located on any

items in the apartment. (IV R.R. 88-91, 115). Though the apartment had

various personal items in one of the rooms and in some of the cabinets,

there was no evidence presented at trial that any of these items could

be connected to Petitioner in any way.

      B.     Opinion Below

      The Second Court of Appeals began its analysis by identifying

the proper test of factors to be used when assessing whether the state

has sufficiently linked an accused to the contraband. Simington, 2015

WL 3917829 at 2-3 (citing Evans v. State, 202 S.W.3d 158, 161–62 (Tex.

Crim. App. 2006). However, the court then proceeded to apply that test

incorrectly by finding the evidence sufficient to show beyond a

reasonable doubt to convict Mr. Simington of both offenses. Simington,

2015 WL 3917829 at *3.



                                    6
      C.     Standard of Review

      In a due-process review of the sufficiency of the evidence to

support a conviction, an appellate court must review all of the evidence

in the light most favorable to the verdict to determine whether any

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

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wise v. State, 364 S.W.3d 900,

903 (Tex. Crim. App. 2012).

      D.     Controlling Law

      The State is required to prove every element of the offense set

forth in the indictment beyond a reasonable doubt. See Juarez v. State,

198 S.W.3d 790, 793 (Tex. Crim. App. 2006) (stating that elements of

offense must be charged in indictment, submitted to jury, and proven

by State beyond reasonable doubt). A person commits the offense of

possession of a controlled substance if he knowingly or intentionally

possesses it. T EX. H EALTH & S AFETY C ODE A NN. § 481.115(d). Under this

indictment, the State had to prove beyond a reasonable doubt that the

accused (i) intentionally or knowingly (ii) possessed, i.e., exercised

actual care, custody, control, and management over cocaine (iii) in an

amount of more than four grams but less than 200 grams on or about

                                    7
the date set forth in the indictment. See Poindexter v. State, 153 S.W.3d

402, 405-06 (Tex. Crim. App. 2005); Brown v. State, 911 S.W.2d 744, 747

(Tex. Crim. App. 1995). The State alone has the burden of proving

beyond a reasonable doubt every essential element of the offense

charged. Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1980).

      A person possesses an object if he has actual care, custody,

control, or management of that object. T EX. H EALTH & S AFETY C ODE

A NN. § 481.002(38) (West 2010). When drugs are found and the accused

is not in exclusive possession of the place where they are found, the

connection to the drugs must be more than fortuitous, and to this end,

Texas courts utilize a links rule that is designed to protect innocent

bystanders from conviction merely because of their proximity to

someone else’s drugs. Evans, 202 S.W.3d at 161–62; Olivarez v. State, 171

S.W.3d 283, 291 (Tex. App.–Houston [14th Dist.] 2005, no pet.). Mere

presence at the location where drugs are found is insufficient, by itself,

to establish actual care, custody, or control, but presence or proximity,

when combined with other evidence, direct or circumstantial, may be

sufficient. Evans, 202 S.W.3d at 161–62. Such “links” generate a

reasonable inference that the accused knew of the contraband’s



                                    8
existence and exercised control over it. See Evans, 202 S.W.3d at 161–62.

Courts have identified the following non-exclusive factors that may

help to show an accused’s links to a controlled substance: (1) the

defendant’s presence when a search is conducted; (2) whether the

contraband was in plain view; (3) the defendant’s proximity to and the

accessibility of the narcotic; (4) whether the defendant was under the

influence of narcotics when arrested; (5) whether the defendant

possessed other contraband or narcotics when arrested; (6) whether the

defendant made incriminating statements when arrested; (7) whether

the defendant attempted to flee; (8) whether the defendant made

furtive gestures; (9) whether there was an odor of contraband; (10)

whether other contraband or drug paraphernalia were present; (11)

whether the defendant owned or had the right to possess the place

where the drugs were found; (12) whether the place where the drugs

were found was enclosed; (13) whether the defendant was found with

a large amount of cash; and (14) whether the conduct of the defendant

indicated a consciousness of guilt. Olivarez, 171 S.W.3d at 291. It is not

the number of links that is dispositive but, rather, the logical force of all

of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.



                                     9
      E.     Application

      A review of the factors set forth above shows that Petitioner was

present at the apartment when the search was conducted; though the

evidence showed that the cocaine was closer to Delisha Bennett than to

Petitioner; the contraband was in plain view and nearby; there was no

evidence that Petitioner was under the influence of narcotics at the time

of the search; Petitioner had no contraband on his person; Petitioner

made no incriminating statements, nor did he try to flee or make any

furtive gestures; there was no evidence that an odor of contraband was

present in the apartment; other drug paraphernalia was present;

Petitioner did own or have any right to possession of the premises; the

place where the drugs were found was enclosed; and, though

Petitioner did have $600 in cash on his person, his conduct most

assuredly did not indicate a consciousness of guilt.2 Olivarez, 171

S.W.3d at 291. Moreover, these factors are not exclusive, and other

pertinent facts tend to disprove any allegation that Petitioner is


2

Of critical note, Delisha Bennett had $474 in small denomination currency
spread out on the floor in front of her when the search warrant was
executed. (IV R.R. 54-55, 87, 92, 95; VI R.R. 9, 15, 17). Under the State’s
theory of the case, and with no more evidence than that presented against
Mr. Simington, it is just as likely that she was the person selling cocaine
from 6043 Stoneybrook.

                                    10
somehow connected to the cocaine discovered at the apartment. First,

Varrett admitted that none of the controlled drug buys had been from

Petitioner, and that Petitioner had not been named or described by his

confidential informants as a person selling narcotics. (IV R.R. 71-73, 75).

Second, prior to the execution of the search warrant, the apartment had

been under periodic surveillance on numerous occasions; Varrett

admitted that Petitioner had not been previously observed or otherwise

come to the attention of the police in regards to the apartment or

narcotics trafficking. (IV R.R. 75, 79, 95-96).

      Third, Petitioner’s fingerprints were not discovered on any of the

items seized by the police, nor were his fingerprints located on any

items in the apartment. (IV R.R. 88-91, 115). Finally, though the

apartment had various personal items in one of the rooms and in some

of the cabinets, there was no evidence presented at trial that any of

these items could be connected to Petitioner in any way. Rather, but for

Mr. Simington’s misfortune to have been a bystander in the wrong

place at the wrong time with $600 in his pocket, this Brief would have

in all likelihood been unnecessary.

      The evidence presented by the state showed that someone was

most likely distributing cocaine from 6043 Stoneybrook. However, the

                                    11
state’s evidence failed to meet the burden of proving beyond a

reasonable doubt that Petitioner had exercised actual care, custody,

control, or management of that cocaine. See Poindexter, 153 S.W.3d at

405-06; Brown, 911 S.W.2d at 747. Because of that failure of evidence, no

rational juror should have been able to find every essential element of

the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at

319, 99 S.Ct. at 2789; Wise, 364 S.W.3d at 903.

      Under Texas law, this Court stands as the shield against unfair

and overreaching conduct on the part of the government, with the

capability to correct unjust convictions and see that justice is done.

Pursuant to that vital role, this Court should vacate the judgment

entered below and render a verdict of acquittal on the possession with

intent to distribute cocaine charge. Jackson v. Virginia, 443 U.S. at 319,

99 S.Ct. at 2789; Wise, 364 S.W.3d at 903.

           GROUND FOR REVIEW TWO (RESTATED)

II.   The Court of Appeals erred when found the evidence
      sufficient to prove beyond a reasonable doubt that Petitioner
      was guilty of possession of a firearm by a felon.


      A.     Standard of Review

      In a due-process review of the sufficiency of the evidence to



                                   12
support a conviction, an appellate court must review all of the evidence

in the light most favorable to the verdict to determine whether any

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

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99

S.Ct. at 2789; Wise, 364 S.W.3d at 903.

      B.     Controlling Law

      Section 46.04 of the Texas Penal Code provides that a person who

has been convicted of a felony commits an offense if he possesses a

firearm after the conviction and before the fifth anniversary of the

person’s release from confinement. T EX. P ENAL C ODE A NN. § 46.04

(West 2011). Petitioner stipulated to the fact that he had previously

been convicted of a felony within the past five years. (VI R.R. St. Ex.

38). As with the possession of cocaine, the state failed to show that

Petitioner possessed the handgun discovered at the Stoneybrook

apartment.

      Possession is defined by the penal code as “actual care, custody,

control, or management.” T EX. P ENAL C ODE A NN. § 1.07(a)(39) (West

2011). When there is no evidence that the defendant was in exclusive

control of the place where the firearm was found, the state must offer

additional, independent facts and circumstances that link him to the

                                   13
firearm. Smith v. State, 176 S.W.3d 907, 916 (Tex. App.–Dallas 2005, pet.

ref’d). The links between an accused and the firearm may be

established by either direct or circumstantial evidence. See Poindexter,

153 S.W.3d at 406. In determining whether sufficient links exist, this

Court should examine the same factors looked to in connection with

Petitioner’s first issue, such as whether the firearm was in plain view,

whether Petitioner owned the premises where the firearm was found,

whether he was in close proximity to the firearm and had ready access

to it or whether it was found on him, whether he attempted to flee,

whether his conduct indicated a consciousness of guilt, whether he had

a special connection to the firearm, whether the firearm was found in

an enclosed space, and whether he made incriminating statements.

Smith, 176 S.W.3d at 916. 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. Smith, 176 S.W.3d at 916.

      C.     Application

      Here, Officer Jones testified that upon entry to the front room of

the apartment, he observed Petitioner sitting in the recliner and Delisha

Bennet sitting on the couch. (IV R.R. 19). The evidence in the form of an

actual photograph of where the gun was located shows that it was in

                                   14
plain view, though clearly closer to where Delisha Bennett was sitting

on the couch than to where Petitioner was sitting in the recliner.3 (VI

R.R. St. Ex. 9). As stated previously, the evidence showed that

Petitioner did not own or rent the apartment. Additionally, the gun

was not discovered on his person, nor did he attempt to flee, make any

furtive gestures, or indicate a consciousness of guilt by his conduct.

Finally, there was no evidence showing that Petitioner had any

connection to the gun, much less a special one, and he did not make

any incriminating statements. Critically, Petitioner’s fingerprints were

not on the gun, and the evidence shows that he was not wearing gloves

at the time of the arrest. (VI R.R. St. Exs. 5, 7).

       As with the analysis of Petitioner’s first issue, it’s clear here that

the State’s evidence showed little more than the fact that Petitioner

might have been in the vicinity of a firearm on the date in question.

However, when fitted to the beyond a reasonable doubt constitutional

burden which protects all defendants, even when viewed in the light

most favorable to the verdict, no rational juror could have found that

Petitioner exercised care, custody and control over the firearm. Jackson

3

Officer Jones admitted that his testimony that the gun could have been in
Simington’s lap was pure speculation. (IV R.R. 30).

                                     15
v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903.

This Court should therefore vacate the judgment and sentence entered

below and render a verdict of acquittal on the possession of a firearm

charge. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; Wise, 364

S.W.3d at 903.

                        PRAYER FOR RELIEF

      WHEREFORE,          PREMISES       CONSIDERED,          Petitioner

respectfully prays that this Court grant discretionary review and allow

each party to fully brief and argue the issues before the Court of

Criminal Appeals, and that upon reviewing the judgment entered

below, that this Court reverse the opinion of the Second Court of

Appeals and render a verdict of acquittal.

                                        Respectfully submitted,

                                        /s/Kimberley Campbell
                                        Kimberley Campbell
                                        TBN: 03712020
                                        Factor, Campbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorneys for Petitioner
                                        Kendell Najee Simington


                                   16
                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
3,911.

                                        /s/Kimberley Campbell
                                        Kimberley Campbell


                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 2nd
day of July , 2015.

                                        /s/Kimberley Campbell
                                        Kimberley Campbell




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                          APPENDIX


1.   Opinion of the Second Court of Appeals.




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                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00187-CR
                             NO. 02-14-00188-CR


KENDELL NAJEE SIMINGTON                                           APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
              TRIAL COURT NOS. 1327054D, 1327055D

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      A jury convicted Appellant Kendell Najee Simington of (i) possession with

intent to deliver between 4 and 200 grams of cocaine and (ii) unlawful

possession of a firearm by a felon, and it assessed his punishment at 30 years’

confinement on the delivery charge and 10 years’ confinement on the firearm

      1
      See Tex. R. App. P. 47.4.
charge.   In two points, Simington argues that the evidence is insufficient to

support his conviction for both offenses. We will affirm.

                                 II. BACKGROUND

      In May 2013, narcotics officers received information about possible drug

activity at an apartment in Fort Worth. They began conducting surveillance on

the apartment and discovered information that led them to believe that it was

operating as a trap house. According to the officers, trap houses are generally

used for the sole purpose of selling illegal drugs, and it is common for these

places to lack any sign of actual habitation.     While observing the apartment,

officers frequently saw visitors arrive and go inside for “three or four minutes” and

then leave. Believing that drugs were being sold out of the apartment, officers

enlisted the help of a confidential informant to conduct two controlled buys at the

apartment. On both occasions, the informant—who had been searched before

going in—returned with narcotics. The informant also reported that there was a

firearm inside the apartment and that the door was barricaded by two pieces of

wood to prevent unaided entry.

      Armed with this information, police obtained a “high risk” search warrant for

the apartment and had it carried out by the SWAT team. The SWAT team took

down the door with a battering ram and threw in a “flash bang” device to disorient

anyone inside.    The officers then entered the apartment and discovered two

individuals—Simington and Delisha Bennett. Between them was a ceramic plate

with several baggies of what was later determined to be cocaine. Also in the


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room were strips of paper with a phone number, at least two digital scales, and

$474 in mostly one- and five-dollar bills. There was a gun on the floor in front of

Simington and $600 in small denominations inside his pocket.

                   III. EVIDENTIARY SUFFICIENCY—POSSESSION

      Simington argues in his first and second points that the evidence is

insufficient to link him to the narcotics and to the gun that were found inside of

the apartment.

      A.     Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). 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. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      B.     Possession with Intent to Deliver

      To support Simington’s conviction, the State had to prove that he

knowingly or intentionally possessed between 4 and 200 grams of cocaine. See

Tex. Health & Safety Code Ann. §§ 481.112(a), (d), 481.115(d) (West 2010).

“Possession” means that the accused exercised “actual care, custody, control, or


                                         3
management” over the substance. Tex. Penal Code Ann. § 1.07(a)(39) (West

Supp. 2014); see Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.

2005). While mere presence alone is not sufficient to establish possession, it

may become sufficient to establish guilt beyond a reasonable doubt “when

combined with other evidence, either direct or circumstantial.” Evans v. State,

202 S.W.3d 158, 162 (Tex. Crim. App. 2006).            Independent facts and

circumstances may link the accused to the contraband such that it may be

justifiably concluded that the accused knowingly possessed the contraband. Id.

at 161‒62.

      Relevant links connecting the defendant to possession of an illegal

substance include: (1) the defendant’s presence when a search is conducted;

(2) whether the contraband was in plain view, (3) the defendant’s proximity to

and the accessibility of the narcotic; (4) whether the defendant was under the

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

contraband or narcotics when arrested; (6) whether the defendant made

incriminating statements when arrested; (7) whether the defendant attempted to

flee; (8) whether the defendant made furtive gestures; (9) whether there was an

odor of contraband; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place

where the drugs were found; (12) whether the place where the drugs were found

was enclosed; (13) whether the defendant was found with a large amount of

cash; and (14) whether the conduct of the defendant indicated a consciousness


                                      4
of guilt. Id. at 162 n.12; Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). These factors are non-exclusive, and it is not

the number of links but the “logical force” of all the evidence that supports a

finding of guilt. Olivarez, 171 S.W.3d at 291–92.

       Here, numerous links connect Simington to the possession of the cocaine

seized by police officers. First, Simington was present during the search and

was in close proximity to the drugs, which were discovered in plain view.

Second, with trap houses, it is common for more than one dealer to sell drugs out

of the same location, and the record demonstrates that officers were unable to

connect the apartment to a particular name. Furthermore, it was clear that no

one lived in the apartment because there was a lack of furniture, food, and

clothes; while there was a TV, a couch, and a chair, narcotics officers stated that

this was not uncommon for trap houses. Simington argues that he cannot be

connected to the apartment because he did not sell the drugs to the informant

during the controlled buys and because his existence had not come to the

attention of the narcotics officers until after the execution of the search warrant,

but these facts are significantly outweighed by the logical force of the evidence

linking Simington to the narcotics.

      Simington argues that he was merely a misfortunate “bystander in the

wrong place at the wrong time with $600 dollars in his pocket.” However, while

having large sums of cash on one’s person may not be dispositive, the record

shows that when large amounts of money are made up of small denominations,


                                         5
officers will generally equate it to narcotics sales. Moreover, an officer at the

scene testified that Simington was likely not at the apartment to purchase

narcotics because the door was barricaded from the inside. According to the

officer, usually when someone was inside the apartment buying drugs, the

barricade came down.

       Simington also argues that he cannot be linked to any items inside of the

apartment because police were unable to recover his fingerprints on any of the

seized items, but this is not dispositive in our sufficiency review. As the record

shows, things like the little baggies of cocaine were never tested for fingerprints,

and other items that were tested, like the gun, did not reveal any fingerprints at

all.

       Viewing all of the evidence in the light most favorable to the verdict, we

hold that a rational jury could have found beyond a reasonable doubt that

Simington intentionally or knowingly possessed the cocaine discovered in the

apartment. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Evans, 202 S.W.3d

at 162; Olivarez, 171 S.W.3d at 291–92. Thus, we hold that the evidence is

sufficient to support Simington’s conviction for possession with intent to deliver

between 4 and 200 grams of cocaine, and we overrule his first point. See, e.g.,

Gabriel v. State, 842 S.W.2d 328, 330‒31 (Tex. App.—Dallas 1992) (holding

same based on similar facts), aff’d, 900 S.W.2d 721 (Tex. Crim. App. 1995).




                                         6
      C.     Unlawful Possession of a Firearm

      Under section 46.04 of the Texas Penal Code, a person commits a crime if

he possesses a firearm after the conviction and before the fifth anniversary of his

release from confinement. Tex. Penal Code Ann. § 46.06(a)(1) (West 2011).

There is no dispute that Simington was incarcerated for conviction of a felony

less than five years prior to his arrest in this case; Simington only argues that the

evidence was insufficient to link him to possession of the gun.          Like in the

narcotics context, when there is no evidence that the appellant was in exclusive

control of the firearm, the State must offer additional, independent facts and

circumstances linking him to the weapon. See Smith v. State, 176 S.W.3d 907,

916 (Tex. App.—Dallas 2005, pet. ref’d) (citing Poindexter, 153 S.W.3d at 406).

We use the same non-exclusive relative links set out above. See Olivarez, 171

S.W.3d at 291–92.

      The evidence demonstrates that Simington was present during the search

and that the gun was loaded, at his feet and readily accessible, and in plain view.

As the State contends, “[I]t [is] rational to conclude that [Simington] was using the

firearm found near him to protect that stash of drugs.” Indeed, as explained

above, the narcotics officers testified that the apartment was being used as a trap

house. While Simington’s fingerprints were not found on the gun, neither were

any other finger prints discovered. Viewing all of the evidence in the light most

favorable to the verdict, a rational jury could have found beyond a reasonable

doubt that Simington exercised actual care, custody, control, or management


                                         7
over the gun. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Poindexter, 153

S.W.3d at 405–06. Accordingly, the evidence is sufficient to support Simington’s

conviction for unlawful possession of a firearm. See, e.g., Hamilton v. State,

No. 08-09-00012-CR, 2011 WL 676097, at *1‒3 (Tex. App.—El Paso Feb. 25,

2011, no pet.) (not designated for publication) (holding same under similar facts).

We overrule his second point.

                                 IV. CONCLUSION

      Having overruled Simington’s two points, we affirm the trial court’s

judgments.



                                                   /s/ Bill Meier

                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 25, 2015




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