Appeal 

IN THE 

TEXAS COURT OF CRIMINAL APPEALS

KENNETH TURNER

Petitioner

v. NO. PD-0995-15

 PD-0996-15

STATE OF TEXAS

Respondent

_____________________

PETITION FOR DISCRETIONARY REVIEW

_____________________

 DARIAN HOWARD

 SBN: 24067669

 P.O. BOX 411252

 DALLAS, TEXAS 75241

 (214)372.3333 (Telephone)

 (214)372.3320 (Facsimile)

 darianhoward@yahoo.com (Email)

ORAL ARGUMENT REQUESTED
Appeal i

TABLE OF CONTENTS

 Page

TABLE OF CONTENTS................................................... i

INDEX OF AUTHORITIES................................................ ii-iii

STATEMENT REGARDING ORAL ARGUMENT................... iv

SUMMARGY OF ARGUMENT.......................................... iv

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

STATEMENT OF PROCEDURAL HISTORY......................... 1

GROUNDS FOR REVIEW................................................ 1

STATEMENT OF THE FACTS.......................................... 2-3

ARGUMENT................................................................ 3-19

I. The evidence presented was legally insufficient to prove the 

requisite intent for the offense of possession with the intent to 

deliver a controlled substance.

A. The Standard of Review................................ 4-5

B. Application............................................... 5-13

II. The evidence presented was legally insufficient to convict 

Appellant of the offense of unlawful possession of a firearm 

by a felon.

A. The Standard of Review.............................. 14-15

B. Application............................................. 15-19

PRAYER..................................................................... 19

CERTIFICATE OF SERVICE............................................ 20
Appeal ii

INDEX OF AUTHORITIES

 CASES Pages

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).................... 4, 14

Burden v. State, 55 S.W. 3d 608, 613 (Tex. Crim. App. 2001)........... 4

In re B.P.H., 83 S.W.3d 400, 406 (Tex. App. Fort Worth 2002)......... 4

Johnson v. State, 23 S.W. 3d 1, 11 (Tex. Crim. App. 2000)............... 5,15

Bates v. State, 155 S.W. 3d 212, 216-17 (Tex. App. Dallas 2004)...... 6,15

Joseph v. State, 897 S.W. 2d 374, 376 (Tex. Crim. App. 1995).......... 6

Brown v. State, 911 S.W. 2d 744, 747 (Tex.Crim.App. 1995)............ 6

Moore v. State, 640 S.W. 2d 300, 302 (Tex.Crim.App. 1982)............. 6

Deshong v. State, 625 S.W. 2d 327, 329 (Tex.Crim.App. 1981)......... 7

Porter v. State, 873 S.W. 2d 729, 732 (Tex.App. Dallas 1994).......... 7

Wallace v. State, 932 S.W. 2d 519, 524 (Tex.App. Tyler 1995).......... 8

Allen v. State, 249 S.W. 3d 680 (Tex.App. – Austin 2008)................ 8-10

Cude v. State, 716, S.W. 2d 46,47 (Tex.Crim.App. 1986)................... 10

Poindexter v. State, 153 S.W. 3d 402, 406 (Tex.Crim.App. 2005)...... 13,16

Brown v. State, 270 S.W. 3d 564, 568 (Tex.Crim.App. 2008)............... 14

Evans v. State, 202 S.W. 3d 158, 161-62 (Tex.Crim.App. 2006).......... 16

Smith v. State, 176 S.W. 3d 907, 916 (Tex.App.Dallas 2005)................. 16
Appeal iii

STATUTES

Tex. Health and Safety Code 481.112(a).................................. 2, 5, 13

Tex. Penal Code Ann. § 46.04(a)(1)........................................ 2, 15

Tex. Penal Code Ann. § 6.01(a)............................................ 15

Tex. Penal Code Ann. § 6.01(b)............................................. 15

Tex. Penal Code Ann. § 1.07(a)(39)....................................... 15
Appeal iv

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested.

SUMMARY OF ARGUMENT

It is well settled in Texas law that a person unlawfully possesses a 

controlled substance if he/she knowingly (1) exercised control, management, 

or care over the substance, and (2) accused knew the matter possessed was 

contraband. Further, to establish the offense of unlawful possession of a 

firearm by a felon, the State must show (1) that the defendant was previously 

convicted of a felony offense and (2) possessed a firearm after the 

conviction and before the fifth anniversary of the person’s release from 

confinement. If the contraband or firearm is not found on defendant’s 

person or is not seen in the defendant’s exclusive care, custody, control or 

management, additional independent facts and circumstances must be 

offered that link the defendant to the contraband or firearm. 

Here, the State failed to provide evidence sufficient to satisfy the 

affirmative links rule required for the crime of possession, and the evidence 

was legally insufficient to support a conviction for said offense.
Appeal 1

STATEMENT OF THE CASE

On January 15, 2013, Kenneth Turner was charged by indictment with

the offense of Possession with the Intent to Deliver a Controlled Substance

and Unlawful Possession of a Firearm by a Felon. See C.R. at 11. A trial was 

held from June 25 through June 27, 2013. The jury found Mr. Turner guilty 

of the offense of retaliation on June 28, 2013. See C.R. at 6-7. On August 

23, 2013, the Court imposed a sentence of thirty-five (35) years in the Texas 

Department of Correctional Facilities on the charge of Possession with the 

Intent to Deliver a Controlled Substance, and ten (10) years in the Texas 

Department of Correctional Facilities on the Unlawful Possession of a 

Firearm by a Felon charge. See C.R. at 39. On September 9, 2013, Mr. 

Turner timely filed a Notice of Appeal from his conviction and sentence. See 

C.R. at 42.

STATEMENT OF PROCEDURAL HISTORY

(1) Date of opinion from Court of Appeals: October 29, 2014

(2) Date of Motion for Rehearing: December 19, 2014

(3) Date Motion for Rehearing Disposed: June 4, 2014

(4) Date of Motion or En Banc Reconsideration: January 16, 2015

(5)Date Motion for En Banc Disposed: June 16, 2015
Appeal 2

GROUNDS FOR REVIEW

I. Was the evidence presented legally insufficient to prove the requisite 

intent for the offense of possession with the intent to deliver a 

controlled substance?

II. Was the evidence presented legally insufficient to prove the requisite 

intent for the offense of unlawful possession of a firearm by a felon?

STATEMENT OF THE FACTS

Appellant was charged with the offense of possession with the intent 

to deliver a controlled substance in violation of Tex. Health and Safety Code

481.112(a) and unlawful possession of a firearm by a felon in violation of 

Tex. Penal Code § 46.04(a)(1). Specifically the State alleged Appellant 

knowingly possessed a controlled substance while having the intent to 

distribute that substance. To that effect, it produced two witnesses who 

testified as to his actions on the date of the alleged acts.

Officer Robert Wilkerson and Officer Stephen Cole, described in 

detail their encounters with Appellant. Officer Robert Wilkerson testified as 

to his involvement in the arrest of Appellant. Officer Wilkerson states that

he arrived at the address of 8081 Marvin D. Love, Apartment # 223 in 

Dallas County, in response to a family violence and armed encounter call. 

Officer Wilkerson testified that when he first encountered Appellant, he was 

on the commode in the apartment. (R.R. at III:69) He stated that when 

talking to Appellant, he did not appear to be nervous, calm and did not 
Appeal 3

appear as if he was hiding anything. (Id. at III:71) According to Officer 

Wilkerson’s testimony, Appellant was not in close proximity to the guns and 

drugs that were found on the premises. During the encounter, Officer 

Wilkerson admits that he did not question Appellant as whether any of the 

drugs or weapons belonged to him, and only assumed that the contraband 

was that of Appellant’s. He also admits that he assumed that Appellant lived 

at the residence, and did not find any evidence that Appellant lived there. 

(R.R. III:112) Officer Stephen Cole, also stated that Appellant seemed very 

calm during the investigation. However, he admits that he found the facts as 

the complainant presented seemed a little strange, and he had considered 

releasing Appellant to leave. (R.R. at III:106) Officer Cole further admitted 

that he assumed the contraband belonged to Appellant and did not bother to 

investigate further as to whether he actually lived at the residence.

Officer Cole stated that the drugs and guns were not within the reach 

of Appellant when they came into contact with him. (R.R. at III:72,111) 

Both officers testified that there was no evidence linking Appellant to drugs 

at the residence, and the arrest of Appellant was made merely off an 

assumption. (R.R. III:80,82,84,112) They both admitted that they failed to 

interview Appellant and inquire as to whether he lived at the residence or 

whether the contraband belonged to him or complainant. Id. 
Appeal 4

ARGUMENT

I. The evidence presented was legally insufficient to prove the 

requisite intent for the offense of Possession with the Intent 

to Deliver a Controlled Substance.

A. The Standard of Review

In reviewing the legal sufficiency of the evidence, we examine the

evidence in the light most favorable to the verdict and determine whether 

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

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979). The standard is the same for both direct and circumstantial 

evidence cases. Burden v. State, 55 S.W. 3d 608, 613 (Tex. Crim. App. 

2001). The critical inquiry is whether, after so viewing the evidence, any 

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

crime beyond a reasonable doubt. This standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts. In re B.P.H., 83 S.W.3d 400, 406 (Tex. App. Fort Worth 

2002). In analyzing whether the evidence was factually sufficient to support 

the conviction, we must determine “whether a neutral review of all the 

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

guilt is so obviously weak as to undermine confidence in the jury’s 
Appeal 5

determination, or the proof of guilt, although adequate if taken alone, is 

greatly outweighed by contrary proof.” Johnson v. State, 23 S.W. 3d 1, 11

(Tex. Crim. App. 2000).

B. Application

As detailed above, appellant was arrested on a charge of possession

with the intent to distribute on January 9, 2013. Here there is insufficient 

evidence that appellant actually had possession of the drugs found at the 

residence. Two issues under this point of error are put before the Court. 

The first is the fact that Appellant was not found in possession of the

contraband found. Secondly, Appellant was not in exclusive possession of 

the property where the contraband was found. Where the State cannot in 

any way link appellant to drugs found hidden in a home in which he held no 

ownership interest and was nothing more than a temporary visitor, the 

evidence is legally insufficient to support a conviction for the offense of 

possession. A person commits an offense if he knowingly manufactures, 

delivers, or possesses with intent to deliver a controlled substance. Tex. 

Health & Safety Code Ann. § 481.112(a). The evidence submitted by the 

State supporting the findings of the jury was that of the testimony of Officer 

Robert Wilkerson, Officer Stephen Cole and the contraband found at the 

residence. Officer Wilkerson and Officer Cole testified for the State that the 
Appeal 6

complainant made allegations to them that appellant had drugs in her room. 

However, neither gave testimony that they actually saw Appellant with the 

drugs in his physical possession. Possession means actual care, custody, 

control, or management. Bates v. State, 155 S.W. 3d 212, 216 (Tex. App.-

Dallas 2004). A person commits a possession offense only if he voluntarily 

possesses the prohibited item. Id. Possession is a voluntary act if the 

possessor knowingly obtains or receives the thing possessed or is aware of 

his control of the thing for a sufficient time to permit him to terminate his 

control. Id. To prove unlawful possession of a controlled substance, the 

State must prove that: (1) the accused exercised control, management, or 

care over the substance; and (2) the accused knew the matter possessed was 

contraband. Joseph v. State, 897 S.W. 2d 374, 376 (Tex. Crim. App. 1995). 

Whether this evidence is direct or circumstantial, “it must establish, to the 

requisite level of confidence, that the accused’s connection with the drug 

was more than fortuitous. Where circumstantial evidence is involved, the 

circumstances must exclude every other reasonable hypothesis except that of 

the guilt of the defendant. Moore v. State, 640 S.W. 2d 300, 302 (Tex. Crim. 

App. 1982). This is the whole of the so-called ‘affirmative links’ rule.” 

Brown v. State, 911 S.W. 2d 744, 747 (Tex.Crim.App. 1995). Thus the Court 

of Criminal Appeals have formulated the rule that “when the accused is not 
Appeal 7

in exclusive possession of the place where the substance is found, it cannot 

be concluded that the accused had knowledge of and control over the 

contraband unless there are additional independent facts and circumstances 

which affirmatively link the accused to the contraband.” Deshong v. State, 

625 S.W. 2d 327, 329 (Tex.Crim.App. 1981). The essential element of the 

case to be proven by the State is whether appellant exercised control, 

management and care over the substance. Both officers in their testimony 

confirm that appellant at no point in time had physical possession of the 

drugs found in the apartment. (R.R. III:73, 104-105, 116). Furthermore the 

State failed to present any evidence that appellant was in exclusive 

possession of the place where the drugs were found. As stated earlier, and 

supported by precedence, when the accused is not in exclusive possession of 

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

Appellant to the contraband. Thusly, the State was required to provide 

additional independent facts and circumstances affirmatively linking 

appellant to the drugs found. No set formula of facts exist that would dictate 

a finding of affirmative links sufficient to support an inference of knowing 

possession of contraband. Porter v. State, 873 S.W. 2d 729, 732 (Tex.App. –

Dallas 1994). The number of links is less important than the “logical force” 

or degree to which the links, alone or in combination, tend to affirmatively 
Appeal 8

link the accused to the contraband. Wallace v. State, 932 S.W. 2d 519, 524 

(Tex.App. – Tyler 1995). Possible affirmative links include: (1) whether the 

defendant was present when the drugs were found; (2) whether the drugs 

were in plain view; (3) whether the drugs were found in proximity to and 

accessible to the defendant; (4) whether the defendant was under the 

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

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

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

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

was an odor of drugs; (10) whether the defendant owned or had the right to 

possess the place where the drugs were found; (11) whether the place the 

drugs were found was enclosed; (12) the amount of drugs found; (13) 

whether the defendant possessed weapons; and (14) whether the defendant 

possessed a large amount of cash.

The Appellate Court, in considering the evidence and inferences 

tending to support the findings under attack, will find that the essential 

element of this crime is absent. In its review of the case at bar Appellant 

urges this Court to consider the Third District Court of Appeals ruling in 

Allen v. State, 249 S.W. 3d 680 (Tex.App. – Austin 2008). In Allen, the 

evidence only established that the defendant was present in an apartment in 
Appeal 9

which she did not reside when cocaine was found secreted throughout the 

house: in a plastic bag within a closed dog food bag in the dining room; 

under the kitchen sink; in a kitchen cabinet; and on a platter on top of a 

refrigerator. The issue, the court held, is whether the proof at trial showed 

“more than a strong suspicion or mere probability of guilt. Allen v. State, 

249 S.W. 3d 680, 693 (Tex.App. – Austin 2008). Finding that “at best, the 

State has only shown the contraband was hidden inside a dog food bag, 

without emitting any odor in the owner’s apartment where Allen did not live 

and was present for only a few hours...,” the court refused to find that Allen 

had knowingly possessed the cocaine. Id. at 694. The same conclusion was 

reached as to the drugs found in the kitchen cabinets. Id. at 694-95. 

Questioning the State’s failure to produce evidence of Appellant’s 

fingerprints on any of the evidence recovered or otherwise connect her to the 

contraband, the court held that the State had proved only that Allen had been 

present in the same location as the prohibited substance. Id. While 

proximity to the contraband, in this case the reasonable deduction that over 

her five hour stay in the apartment Allen had likely been in the kitchen on 

more than one occasion, is a factor to be considered, the Court returned to 

the well established rule that, “Proof of mere proximity to contraband is 

insufficient to establish actual constructive possession or the element of 
Appeal 10

knowledge.” Id. at 695. The Third District held that this evidence was 

legally insufficient to support a conviction for possession of cocaine. 

A similar case Cude v. State, 716 S.W. 2d 46,47 (Tex. Crim. App. 

1986)., coming out of the Court of Criminal Appeals, raised the issue of 

exclusive possession. In Cude, Appellant did not rent or own the residence

where drugs were found, nor was he in exclusive possession of the residence 

at the time of the drug raid. The police arrested the defendant for delivery of 

drugs. Cude v. State, 716 S.W. 2d 46,47 (Tex. Crim. App. 1986). After 

obtaining a search warrant, the officers went back to the apartment in which 

the defendant had sold drugs to them and found more drugs. Id. The Court 

found the evidence insufficient to show that the mere presence of a person at 

a residence, not his own, would not constitute control over any contraband 

that is found there. Id.

The circumstances in the case at bar are similar to that in Allen and 

Cude. Appellant ask that this Court apply the same reasoning as in Cude

and that of the Third District in Allen, to the facts of the present case. 

Officer Wilkerson and Officer Cole, both testified that appellant was in the 

bathroom, not in the same vicinity were the drugs were located. (R.R. III:72, 

111) Neither of the officers testimony, place appellant at any point during 

the investigation, in close proximity to the contraband. There was no 
Appeal 11

testimony that Appellant made furtive gestures or incriminating statements, 

in fact both officers admitted that his demeanor was very calm and collected. 

Both officers admitted that they assumed, without further investigation, that 

the drugs belonged to appellant and not to complainant.

(R.R.III:80,82,84,112) Officer Wilkerson stated that appellant did not 

display the behavior of someone hiding something. (R.R. III:71) Appellant 

at no point in time attempted to flee the scene, and Officer Cole testified that 

they even considered letting appellant leave. (R.R. III:106) The officers did 

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

did Appellant have possession of a weapon. Furthermore, there was no 

evidence of mail in appellant’s name, clothing belonging to appellant, or any 

other evidence linking appellant to the residence found at the apartment. 

The apartment where the contraband was found belonged to complainant as 

evidenced by her own testimony. The only possible affirmative link, as 

mentioned by the Court of Appeals in its opinion, that could tie Appellant to 

the drugs was his presence in the apartment when the search ensued, and 

Officer Wilkerson’s testimony that the drugs where in plain view. However, 

the logical force of those factors, are not strong enough to link appellant to 

the contraband, as the drugs although in plain view, was nowhere near 

Appellant. Although appellant was present in the apartment, he was in the 
Appeal 12

bathroom, which was a closed off area in the apartment. There is no 

evidence present as to how long appellant had been in the bathroom. In fact 

both officers admitted to not interviewing appellant, because they 

automatically assumed the drugs found belonged to appellant. Appellant, as 

well as complainant testified that appellant and his child had arrived at the 

apartment the night before. The testimony of complainant confirms that 

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

her and her mother, and not appellant. Nothing in the way of evidence was 

presented at trial to connect appellant to the residence. None of the possible 

affirmative links in the case at bar, have any applicability to the evidence 

adduced at trial. 

The Court of Appeals linked Appellant to the contraband by reasoning

that the complainant pointed out the drugs in her apartment. The fact that 

complainant pointed officers to the location of the contraband in her 

apartment does not affirmatively link Appellant to possession of the drugs 

found. Moreover, the fact that complainant told officers that she and 

Appellant had been in a relationship off and on, does not link Appellant to 

possession of the residence. The Court of Appeals centered its ruling on 

Appellant’s first point of error on these two factors alone. Based on these 

two factors, no rational trier of fact could have found beyond reasonable that 
Appeal 13

Appellant’s connection to the cocaine was more than fortuitous. These 

factors do not sufficiently nor do they logically link Appellant to possession 

of the drugs in the apartment, under the affirmative links test. The lack of 

additional independent facts, coupled with the actions of appellant, his 

statements and the given circumstances are insufficient to link him to the 

drugs. A reasonable trier of fact accepting the testimony of the State’s 

witnesses as true, could not have inferred from the circumstances, that there 

were any affirmative links, as required by the Texas Court of Criminal 

Appeals, that would tie appellant to the contraband. The “affirmative links 

rule” is designed to protect the innocent bystander from conviction based 

solely upon his fortuitous proximity to someone else’s drugs. Poindexter v. 

State, 153 S.W. 2d 402, 406 (Tex.Crim.App. 2008). The testimony of both 

officers at most supposes knowledge, and knowledge that is inferred does 

satisfy the requisite culpable mental state for the offense of which appellant 

was convicted. Appellant’s knowledge of the mere presence of the drugs is 

insufficient to establish the requisite mental state, which is knowledge of his 

possession of the drugs. In addressing and balancing the factors set out by 

Tex. Health & Safety Code Ann. § 481.112(a), as well as viewing the 

evidence in the light most favorable to the prosecution, a rational trier of fact 
Appeal 14

could not have found that appellant had actual care, custody, control or 

management of the drugs beyond a reasonable doubt. 

ARGUMENT

II. The evidence presented was legally insufficient to prove the 

requisite intent for the offense of unlawful possession of a 

firearm by a felon.

A. The Standard of Review

In reviewing the legal sufficiency of the evidence, we examine the

evidence in the light most favorable to the verdict and determine whether 

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

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979). This standard gives full play to the responsibility of the trier of 

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts. Id. at 319. The trier 

of fact is the sole judge of the weight and credibility of the evidence. Brown 

v. State, 270 S.W. 3d 564, 568 (Tex.Crim.App. 2008). The critical inquiry is 

whether, after so viewing the evidence, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. In 

analyzing whether the evidence was factually sufficient to support the 

conviction, we must determine “whether a neutral review of all the evidence, 

both for and against the finding, demonstrates that the proof of guilt is so 
Appeal 15

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

the proof of guilt, although adequate if taken alone, is greatly outweighed by 

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

B. Application

To establish the offense of unlawful possession of a firearm by a 

felon, the State must show that the defendant was previously convicted of a 

felony offense and possessed a firearm after the conviction and before the 

fifth anniversary of the person’s release from confinement. Tex. Penal Code 

Ann. § 46.04(a)(1). The penal code defines possession as actual care, 

custody, control or management. Tex. Penal Code Ann. § 1.07(a)(39). A 

person commits a possession offense only if he voluntarily possesses the 

prohibited item. Tex. Penal Code Ann. § 6.01(a). Possession is voluntary if 

the possessor knowingly obtains or receives the thing possessed or is aware 

of his control of the thing for a sufficient time to permit him to terminate his 

control. Id. at § 6.01(b). If the firearm is not found on the defendant’s 

person or is not seen in the defendant’s exclusive care, custody, control, or 

management, as in this case, the State must offer additional, independent 

facts and circumstances that link the defendant to the firearm. Bates v. State, 

155 S.W. 3d 212, 216-17 (Tex. App. – Dallas 2004). The purpose of linking 

the accused to the firearm is to protect innocent bystanders from conviction 
Appeal 16

solely on their fortuitous proximity to the firearm. Poindexter v. State, 153 

S.W. 3d 402, 406 (Tex.Crim.App. 2005). Such links may be established by 

either direct or circumstantial evidence. Evans v. State, 202 S.W. 3d 158, 

161-62 (Tex.Crim.App. 2006). An appellate court examines factors such as 

whether the firearm was in plain view, whether the defendant owned the 

premises where the firearm was found, whether the defendant made 

incriminating statements, whether the defendant was in close proximity to 

the firearm and had ready access to it, whether the defendant attempted to 

flee, whether the defendant’s conduct indicated a consciousness of guilt, 

whether the defendant had a special connection to the firearm, and whether 

the firearm was found in an enclosed space. Smith v. State, 176 S.W. 3d 907, 

916 (Tex.App. – Dallas 2005). Significantly, it is the logical force of the 

factors, not the number of factors present that determines whether the 

elements of the offense have been established. Id. 

It is obvious from testimony that Appellant did not have exclusive 

possession of the two firearms found at the residence. We must therefore 

apply the affirmative links test to the case at bar. When considering the 

logical force of the factors set out by precedence, the evidence is legally 

insufficient to link appellant to the firearms found at complainant’s 

residence. A close look at the evidence presented at trial, shows that one of 
Appeal 17

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

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

whether appellant had knowledge of possession of the firearm. Moreover, 

the testimony puts appellant in a closed in bathroom, which was a good 

distance from the firearm found. When analyzing the other possible 

affirmative links, none set up the elements of unlawful possession of a 

firearm by a felon. The evidence presented at trial did not establish 

appellant’s ownership of the premises. Officer Wilkerson and Officer Cole, 

both admitted to assuming that appellant was resident of the premises. 

Neither officer could confirm that appellant lived at the residence, and the 

State did not present evidence of a lease or other documents linking 

ownership to appellant. The uncontroverted testimony of complainant 

confirms that appellant did not have access or ownership rights to the 

residence. (R.R. IV:7) Appellant never made any statements in regards to 

either firearm belonging to him. (R.R. III:90,114) Both officers admit that 

when they encountered appellant was not in close proximity to either 

firearm, and at no point did he attempt to flee the residence. (R.R. III:72) 

When questioned as to appellant’s behavior, Officer Wilkerson stated he was 

not nervous, hostile and did not appear to be hiding anything. (R.R. III:71) 

Officer Cole testified similarly that appellant appeared to confused as to 
Appeal 18

situation, only displaying knowledge of the argument he and complainant 

had the night before. The State failed to present evidence as to whether 

appellant had a special connection to the firearm found. 

Officer Wilkerson, through his own testimony admitted that he failed 

to dust the guns for fingerprints to confirm whether complainant or appellant 

had ever possessed either gun. (R.R. III:90-91) Officer Wilkerson did testify 

that he requested identification from appellant and that he saw him pull it out 

of a gray coat. (R.R. III:45) Officer Wilkerson later found the other firearm 

in that same gray coat. This factor appears to possibly link appellant to the 

other firearm found. However, the inconsistent testimony of Officer 

Wilkerson, coupled with complainant and appellant’s testimony, eliminates 

reasonableness of this factor. The testimony of Officer Wilkerson is 

controverted by the testimony of appellant, who states that his identification 

was in his pants pocket, along with the rest of the items he brought with him. 

(R.R. III:166-167) Furthermore, complainant testifies that appellant was not 

wearing a jacket on when he came to her home. (R.R. IV:6-7) The testimony 

of Officer Cole also conflicts with that of Officer Wilkerson’s testimony, in 

regards to the gray coat and the finding of the second firearm. Officer Cole 

states, “I hear my partner, “You gonna try to shoot me?” (R.R. III:109) He 

further states, “I go in a couple of steps and he’s showing me the other 
Appeal 19

pistol. He’s trying to go in the coat.” (Id.) Officer Cole’s testimony paints a 

picture of Officer Wilkerson seeing the weapon in an open area, almost 

surprisingly, before he makes the statement “You gonna try to shoot me?” 

This is inconsistent with Officer Wilkerson’s version of the facts, as he 

stated he searched the coat and then found the gun. (R.R. III:46) Officer 

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

(R.R. III:109-110)

 As stated earlier, what determines whether the elements of the 

offense have been established is, the logical force of the factors that are 

present. When viewing all of the evidence in the light most favorable to the 

prosecution, giving full play to the responsibility of the trier of fact to 

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts, the evidence presented was 

legally insufficient for a rational jury to have found beyond a reasonable 

doubt that appellant possessed either firearm. 

PRAYER

Wherefore, premises considered, because there is nothing, even 

viewing the evidence in the light most favorable to the verdict, linking 

appellant to the contraband found at the residence, appellant respectfully 
Appeal 20

prays that the Court hold the evidence before it to be legally insufficient, 

reverse the judgment of the trial court, and render a judgment of acquittal.

Respectfully Submitted,

 THE LAW OFFICE OF DARIAN HOWARD, PLLC

 P.O. Box 411252

 Dallas, Texas 75241

 (214) 372.3333 (Telephone)

 (214) 372.3320 (Facsimile)

 

 /s/ Darian Howard .

 Darian Howard

 State Bar No. 24067669

 ATTORNEY FOR KENNETH TURNER

 

Certificate of Service

I hereby certify that a true and correct copy of this instrument 

was forwarded via certified mail to all counsel of record on this the 17th 

day of August 2015.

 /s/ Darian Howard 

 Darian Howard
Envelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=16a31be3-1684-4a94-9b48-b461d093c13c[8/18/2015 11:48:07 AM]

Print this page

Case # PD-0995-15, PD-0996-15

Case Information

Location Court Of Criminal Appeals

Date Filed 08/17/2015 11:12:14 PM

Case Number PD-0995-15, PD-0996-15

Case Description

Assigned to Judge

Attorney

Firm Name Individual

Filed By Darian Howard

Filer Type Not Applicable

Fees

Convenience Fee $0.00

Total Court Case Fees $0.00

Total Court Filing Fees $0.00

Total Court Service Fees $0.00

Total Filing & Service Fees $0.00

Total Service Tax Fees $0.00

Total Provider Service Fees $0.00

Total Provider Tax Fees $0.00

Grand Total $0.00

Payment

Account Name Darian Howard

Transaction Amount $0.00

Transaction Response

Transaction ID

Order #

Petition for Discretionary Review

Filing Type EFileAndServe

Filing Code Petition for Discretionary Review

Filing Description

Reference Number

Comments

Status Rejected

Fees

Court Fee $0.00

Service Fee $0.00

Rejection Information

Rejection

Reason Time Rejection Comment

08/18/2015

The petition for discretionary review does not contain a certification of compliance

with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
Envelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=16a31be3-1684-4a94-9b48-b461d093c13c[8/18/2015 11:48:07 AM]

Other 11:46:13

AM

identity of Judge, Parties and Counsel [Rule 68.4(a)]. The petition for discretionary

review does not contain a copy of the court of appeals opinion [Rule 68.4(j)]. You

have ten days to tender a corrected petition for discretionary review.

Documents

Lead Document turner.kenneth.PetitionForDiscretionaryReview.pdf [Original]

eService Details

Name/Email Firm Service Type Status Served Date/Time Opened

Darian Howard

darianhoward@yahoo.com EServe Sent Yes Not Opened