Affirmed and Opinion Filed October 29, 2014




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01486-CR
                                      No. 05-13-01487-CR
                            KENNETH RAY TURNER, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                    Trial Court Cause Nos. F13-51238-H & F13-51239-H

                             MEMORANDUM OPINION
                           Before Justices Bridges, Francis, and Myers
                                   Opinion by Justice Bridges
       Kenneth Ray Turner appeals his convictions for possession of cocaine with the intent to

deliver in cause number 05-13-01486-CR and unlawful possession of a firearm by a felon in

cause number 05-13-1487-CR. A jury convicted Turner, and the trial court sentenced him to

thirty-five years’ imprisonment for the possession of cocaine with intent to deliver and ten years’

imprisonment for the unlawful possession of a firearm by a felon, to run concurrently. In two

points of error, Turner challenges the sufficiency of the evidence to support both of the trial

court’s judgments. We affirm the trial court’s judgments. Because all dispositive issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4.

        On the morning of January 9, 2013, complainant, Maytrice Smith, called the Dallas

Police Department regarding a domestic disturbance with a weapon. Dallas police officers
Robert Wilkerson and Stephen Cole responded and arrived at Smith’s apartment around 5:50

a.m. When the officers knocked on the apartment door, Smith answered the door upset, and

whispered that Turner was sitting on the commode, he had hit her the night before, and he had a

loaded gun on the dresser in the bedroom. Both officers could see Turner in the bathroom

because the bathroom door was ajar. The officers entered the apartment and Cole secured the

weapon, a 9 mm Glock handgun loaded with hollow point bullets, from the bedroom. Wilkerson

approached Turner while Cole interviewed Smith.

       Smith told Cole that she and Turner both lived at the apartment together, they had argued

the night before, Turner physically assaulted her, and when she tried to call for help, Turner took

the phone away and would not allow her to call the police. Eventually, Smith and Turner both

fell asleep, and when Smith awoke at 5:00 a.m., she called the police. While being interviewed

by Cole, Smith told Cole that Turner had “dope” in the bedroom on the dresser.

       Wilkerson made contact with Turner while he was in the bathroom. Assuming he was

going to arrest Turner to prevent further family violence, Wilkerson escorted Turner into the

bedroom so that Turner could get dressed. Upon entering the bedroom, Wilkerson observed a

brown paper lunch bag, full of what he believed to be marijuana and crack, sitting on the dresser.

Wilkerson reported that when asked, Turner retrieved his identification from a jacket on the

bedroom floor. Wilkerson allowed Turner to dress before hand-cuffing him. Wilkerson then

picked up the jacket from the floor and noticed it felt heavy. Before handing the jacket to Turner,

Wilkerson examined the jacket for contraband and found another loaded handgun in the same

pocket where Turner had earlier retrieved his identification; this one a Smith & Wesson .40

caliber pistol with a 13-round clip. Wilkerson placed Tuner under arrest, escorted Turner outside,

and secured him in the patrol car.




                                               –2–
       After Turner was escorted outside, Smith told Cole there were more drugs in the

bedroom, and said she did not want any of “his drugs” to remain in the apartment. She told Cole,

“He’s cooking the drugs all the time.” She went into the bedroom and showed Cole where to find

a black box that contained marijuana, crack cocaine, and other paraphernalia. Smith told Cole, “I

don’t want none of this in here. Take all that.” Smith also directed Cole to a substantial amount

of cash.

       The State introduced evidence of Turner’s prior convictions. Turner was convicted: 1) on

July 6, 2004 for unlawful possession of cocaine with intent to deliver and received five years’

imprisonment; 2) on July 6, 2004, for unlawful possession of PCP and received five years’

imprisonment; 3) on October 29, 2004, for unlawful possession of codeine and received five

years’ imprisonment; 4) on September 18, 2008, for unlawful possession of MDMA 3, 4-

methylenedioxy methamphetamine with intent to deliver and received ten years’ imprisonment;

5) on September 18, 2008, for unlawful possession of 400 grams of cocaine with intent to deliver

and received ten years’ imprisonment; and finally 6) on September 18, 2008, for unlawful

possession of a firearm by a felon and received four years’ imprisonment. Turner testified he was

released from prison in February 2011.

       At trial, Marcella St. John, an undercover narcotics officer with the Dallas Police

Department clandestine lab squad, testified concerning the packaging and sale of marijuana and

crack cocaine. St. John testified cocaine is cooked into a solid “cookie” of crack and then further

broken down into smaller sizes to be distributed. St. John testified “your street-level user” would

not be in possession of a “cookie” because they are addicts and “they smoke it as soon as they

get it.” She further explained that finding a “cookie” indicates the person is a dealer. St. John

testified the different colored baggies were used to indicate the amount of crack in each bag –

“It’s happening so fast . . . they don’t want to have to think about it . . . .” St. John reviewed the

                                                 –3–
evidence found in the apartment—a scale, marijuana in various sized bags, various colored

baggies, rocks of crack in various sizes, a bigger “cookie” of crack, the loaded handguns, the

box—and stated, “it’s my opinion, based on everything that I have in front of me, it’s definitely

the tools of the trade of somebody that’s distributing.”

       Turner was charged with possession of cocaine with intent to deliver, use of a deadly

weapon, and unlawful possession of a firearm by a felon. A jury convicted Turner on the

possession of cocaine with intent to deliver and the unlawful possession of a firearm; these

appeals followed.

       In both points of error, Turner argues the evidence is insufficient to support his

convictions for possession of cocaine with the intent to deliver and unlawful possession of a

firearm by a felon. When reviewing a challenge to the sufficiency of the evidence, we examine

all the evidence in the light most favorable to the verdict and determine whether a 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); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim.

App. 2011). It is the responsibility of the jury to fairly 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. We may not substitute our judgment for that of the fact finder

regarding the credibility of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999). The fact finder may choose to believe or disbelieve all or any part of any witness’

testimony. Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.—Dallas, 2003, no pet.).

       Turner’s first point of error argues the evidence is legally insufficient to prove his guilt

beyond a reasonable doubt. Specifically, Turner complains the evidence fails to establish enough

affirmative links to connect him with the cocaine found at the apartment.




                                                –4–
       To prove the unlawful-possession-of-a-controlled-substance element of the charged

offense in this case, the State was required to prove that: 1) Turner exercised control,

management, or care over the four grams or more of cocaine; and 2) Turner knew that the matter

possessed was cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010);

Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). Because Turner was not in

exclusive control of the apartment, the State was also required to prove beyond a reasonable

doubt that Turner’s connection to the cocaine “was more than just fortuitous.” Id. The number of

factors linking Turner to the contraband is less important than the logical force with which all the

evidence, both direct and circumstantial, connects Turner to the contraband. Manivanh v. State,

334 S.W.3d 23, 27 (Tex. App.—Dallas 2008, pet. ref’d). Possible affirmative links 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 of guilt. Id.

       Turner argues the evidence fails to establish any affirmative links between him and the

cocaine. We disagree. Viewed in the light most favorable to the verdict, the evidence reveals

facts and circumstances which link Turner to the offense. Regarding Turner’s right to possess the

place where the drugs were found, although the apartment lease was not in Turner’s name, Smith

                                                –5–
reported she and Turner had been in a relationship “off and on” for over nine years and Turner’s

son was asleep on the couch. As for proximity, the apartment was very small and the bag with

the marijuana and cocaine was in plain view and on the dresser beside the loaded weapon that

Smith reported Turner used to threaten her. Both officers reported that Smith told them the

drugs belonged to Turner and she wanted all of his drugs out of the apartment. Further, after

Turner was handcuffed and taken out of the apartment, Smith voluntarily directed the officer to

the hidden black box containing more drugs, paraphernalia, and a substantial amount of cash

belonging to Turner. We conclude that these facts and circumstances sufficiently link Turner to

the cocaine. See Manivanh, 334 S.W.3d at 27. Consequently, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at

319. We overrule Turner’s first point of error.

       In his second point of error, Turner argues the evidence fails to establish the offense of

unlawful possession of a firearm by a felon. Specifically, Turner argues there is no evidence

affirmatively linking Turner to the firearms. The jury was charged, and found the evidence

proved beyond a reasonable doubt, that Turner was a convicted felon and he intentionally or

knowingly possessed a firearm after conviction and before the fifth anniversary of his release

from confinement or parole following conviction of the felony. See TEX. PENAL CODE ANN. §

46.04 (West 2011). In cases involving unlawful possession of a firearm by a felon, we analyze

the sufficiency of the evidence under the rules adopted for determining the sufficiency of the

evidence in unlawful possession of a controlled substance cases. See Young v. State, 752 S.W.2d

137, 140 (Tex. App.—Dallas 1988, pet. ref’d).

       Viewed in the light most favorable to the verdict, the evidence reveals facts and

circumstances which link Turner to the firearms found in the apartment. The initial call to the

Dallas Police Department was a request for assistance by Smith claiming Turner had physically

                                                  –6–
assaulted her and had a loaded weapon. The first handgun was found on the bedroom dresser, in

plain view, next to a bag of contraband, exactly where Smith told the officers the gun was

located. The second weapon was found in the same jacket pocket that Turner used to retrieve his

identification when asked by the officer. We conclude that these facts and circumstances

sufficiently link Turner to the firearms. See Young, 752 S.W.2d at 140. It is undisputed that

Turner has multiple prior felony convictions within the temporal proximity to January 8, 2013.

Consequently, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We overrule Turner’s second point of

error.

         We affirm the trial court’s judgment.




DO NOT PUBLISH                                         /David L. Bridges/
TEX. R. APP. P. 47.                                    DAVID L. BRIDGES
131486F.U05                                            JUSTICE




                                                 –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

KENNETH RAY TURNER, Appellant                      On Appeal from the Criminal District Court
                                                   No. 1, Dallas County, Texas
No. 05-13-01486-CR        V.                       Trial Court Cause No. F13-51238-H.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Francis and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 29, 2014.




                                             –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

KENNETH RAY TURNER, Appellant                      On Appeal from the Criminal District Court
                                                   No. 1, Dallas County, Texas
No. 05-13-01487-CR        V.                       Trial Court Cause No. F13-51239-H.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Francis and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 29, 2014.




                                             –9–
