                                                                PD-0995-15, PD-0996-15
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 12/3/2015 9:54:51 PM
December 4, 2015                                               Accepted 12/4/2015 1:06:50 PM
                                                                               ABEL ACOSTA
                                                                                       CLERK


                                  IN THE
                      TEXAS COURT OF CRIMINAL APPEALS


   KENNETH TURNER
   Petitioner


   v.                                       NO. PD-0995-15
                                                PD-0996-15

   STATE OF TEXAS
   Respondent

                            _____________________
                          MOTION FOR REHEARING
                           _____________________



                                    DARIAN HOWARD
                                    SBN: 24067669
                                    P.O. BOX 411252
                                    DALLAS, TEXAS 75241
                                    (214)372.3333 (Telephone)
                                    (214)372.3320 (Facsimile)
                                    darianhoward@yahoo.com (Email)




   Motion for Rehearing                 1
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

        Petitioner requests that this Honorable Court re-examine the Court of Appeals

decision affirming the Trial Court’s finding of guilt in this matter.       The following

allegations are made in support of this motion.

        Rehearing is appropriate in this matter on the basis of issues one and two of

Petitioner’s brief. In Petitioner’s first issue the Court of Appeals made a finding that the

evidence was legally sufficient to find Petitioner guilty of the crime of possession of a

controlled substance with the intent to distribute. In analyzing whether the evidence was

factually sufficient to support the conviction, we must determine “whether a neutral

review of all the evidence, both for and against the finding, demonstrates that the proof of

guilt is so obviously weak as to undermine confidence in the jury’s determination, or the

proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.”

Johnson v. State, 23 S.W. 3d 1, 11 (Tex. Crim. App. 2000).

        To prove unlawful possession of a controlled substance, the State must prove

that: (1) the accused exercised control, management, or care over the substance; and (2)

the accused knew the matter possessed was contraband. Joseph v. State, 897 S.W. 2d

374, 376 (Tex. Crim. App. 1995). When the accused is not in exclusive possession of the

substance, the State is required to present evidence affirmatively linking Petitioner to the

contraband. Possible affirmative links include: (1) whether the defendant was present

when the drugs were found; (2) whether the drugs were in plain view; (3) whether the
Motion for Rehearing                              2
drugs were found in proximity to and accessible to the defendant; (4) whether the

defendant was under the influence of drugs when arrested; (5) whether the defendant

possessed other contraband or drug paraphernalia; (6) whether the defendant made

incriminating statements when arrested; (7) whether the defendant attempted to flee; (8)

whether the defendant made furtive gestures; (9) whether there was an odor of drugs; (10)

whether the defendant owned or had the right to possess the place where the drugs were

found; (11) whether the place the drugs were found was enclosed; (12) the amount of

drugs found; (13) whether the defendant possessed weapons; and (14) whether the

defendant possessed a large amount of cash. Although Petitioner was present in the

apartment, he was in the bathroom, which was a closed off area in the apartment. There

is no evidence present as to how long Petitioner had been in the bathroom. The officers

did not testify that they detected an odor of drugs during their investigation, nor did

Petitioner have possession of a weapon. Furthermore, there was no evidence of mail in

appellant’s name, clothing belonging to Petitioner, or any other evidence linking

appellant to the residence found at the apartment. Petitioner, as well as complainant

testified that Petitioner and his child had arrived at the apartment the night before. The

testimony of complainant as well as the items found on Petitioner, confirm that Petitioner

did not have a key to her apartment and the residence belonged to her and her mother,

and not appellant. Nothing in the way of evidence was presented at trial to connect

Petitioner to the residence. None of the possible affirmative links in the case at bar, have
Motion for Rehearing                             3
any applicability to the evidence adduced at trial. The only possible affirmative links, as

mentioned by the Court of Appeals, tying Petitioner to the drugs was his presence in the

apartment when the search ensued, and Officer Wilkerson’s testimony that the drugs

where in plain view. Although the Court of Appeals mentioned in its opinion that the

firearm was found in plain view next to a bag of marijuana and cocaine, the testimony at

trial do not place the gun on the dresser in close proximity to the marijuana and cocaine.

Furthermore, only the marijuana was found in plain view on the dresser by Officer

Wilkerson.

        On Petitioner’s second issue, the Court of Appeals made a finding that the

evidence was legally sufficient to find Petitioner guilty of the crime of unlawful

possession of a firearm by a felon. When considering the logical force of the factors set

out by precedence, the evidence is legally insufficient to link appellant to the firearms

found at complainant’s residence. A close look at the evidence presented at trial, shows

that one of the firearms found was found in plain view by Officer Cole. However, when

viewing the circumstances logically, this factor does not help to establish whether

Petitioner had knowledge of possession of the firearm. Moreover, the testimony puts

Petitioner in a closed in bathroom, which was a good distance from the firearm found.


        In the case at bar, Officer Wilkerson testified that he requested identification from

Petitioner and that he saw him pull it out of a gray coat. Officer Wilkerson later found

Motion for Rehearing                             4
the other firearm in that same gray coat. This factor appears to possibly link appellant to

the other firearm found. However, the inconsistent testimony of Officer Wilkerson,

coupled with complainant and Petitioner’s testimony, eliminates reasonableness of this

factor.    The testimony of Officer Wilkerson is controverted by the testimony of

Petitioner, who states that his identification was in his pants pocket, along with the rest of

the items he brought with him. Furthermore, complainant testifies that Petitioner was not

wearing a jacket on when he came to her home. The testimony of Officer Cole also

conflicts with that of Officer Wilkerson’s testimony, in regards to the gray coat and the

finding of the second firearm. Officer Cole states, “I hear my partner, “You gonna try to

shoot me?” He further states, “I go in a couple of steps and he’s showing me the other

pistol. He’s trying to go in the coat.” Officer Cole’s testimony paints a picture of Officer

Wilkerson seeing the weapon in an open area, almost surprisingly, before he makes the

statement “You gonna try to shoot me?” This is inconsistent with Officer Wilkerson’s

version of the facts, as he stated he searched the coat and then found the gun. Officer

Cole further testifies that he never saw Petitioner in possession of the coat. For that

reason, Petitioner urges this Honorable Court to revisit this matter.

          WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this

Honorable Court grant Petitioner’s Motion for Rehearing and resume this matter for those

reasons alleged herein.


Motion for Rehearing                              5
                       Respectfully Submitted,


                       THE LAW OFFICE OF DARIAN HOWARD, PLLC
                       P.O. Box 411252
                       Dallas, Texas 75241
                       (214) 372.3333 (Telephone)
                       (214) 372.3320 (Facsimile)


                         /s/ Darian Howard       .




                       Darian Howard
                       State Bar No. 24067669

                       ATTORNEY FOR KENNETH TURNER




Motion for Rehearing                     6
