# 068-/S- 069(5 ORIGINAL NO. PD-0069-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

## FILED IN 

## COURTOFCRIMINALAPPEALS MAR 23 2015 AbelAcosta, Clerk

BOBBY SIMMONS, ; Appellant/Petitioner
VS.
THE STATE OF TEXAS/ Appellee/Respondent

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

In Appeal No.05-14-00241-CR;05-14-00240-CR from the Court of Appeals for the Fifth Judicial District Dallas/ Texas

Bobby Simmons TDCJ-ID#1941546 Telford Unit 3899 State Hwy 98 New Boston/ Tx 75570


### RECEIVEDIN COURTOFCRIMINALAPPEALS 

## MAR 202015 AbelAcosta, ClerkTABLE OF CONTENTS
INDEX OF AUTHORITIES III STATEMENT REGARDING ORAL ARGUMENT 1 STATEMENT OF THE CASE 1 STATEMENT OF PROCEDURAL HISTORY 2 GROUNDS FOR. REVIEW 2 GROUND FOR REVIEW NUMBER ONE. 

### Is simple knowledge of contraband possession?
GROUND FOR REVIEW NUMBER TWO. Was the trial court's abuse of discretion harmless? ARGUMENT NUMBER ONE 2 ARGUMENT NUMBER TWO 4 PRAYER FOR RELIEF 5 CERTIFICATE OF SERVICE 6 APPENDIXfOpinion]

IIINDEX OF AUTHORITIES
CASES Berger v. U.S.,295 U.S. 78(1935) 5 Davis v. State,93 s.w.3d 664(Tx-Cr.App.2002) 3 Everett v. State,707 s-w.2d 638(Tx.Cr.App.1986) 4 

### Lassaint v. State,79 s.w.3d 739(Tx.Cr.App.2002) 4 Oaks v. State,642 s.w.2d 75(Tx.Cr.App.1982) 4 U.S. v. Nobles, 422 U.S. 225(1975) 5 

### Williams v. State,313 s.w.3d 393(Tx.App.2009) 4

STATUTES TEX. PENAL CODE§ 1.07(a)(39) 3 TEX. PENAL CODE§ 6.01(b) 4 T.R.A.P. RULE 66.3(a) 3

IIINO. PD-0069-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS

BOBBY SIMMONS, Appellant/Petitioner
VS. THE STATE OF TEXAS, Appellee/Respondent 

### APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS: 

### Petitioner respectfully submits this Petition for Discretion ary Review and moves this Honorable Court grant review of this cause and offers the following in support thereof:

statement regarding oral argument 

### The Petitioner requests oral argument in this case because 

### such argument may assist the Court in applying the facts to the 

## issues raised. It is suggested that oral argument may help simplify the facts and clarify the issues.

STATEMENT OF THE CASE 

## Petitioner was arrested at the house of a female acquantance. Although petitioner had a sexual relationship and spent some nights at this residence he did not live there. As a resultpetitioner had several personal items stored at this residence. In finding petitioner guilty of possession of the contra 

### band found by authorities at this residence, the jury reached a verdict that was contrary to the law and the evidence. STATEMENT OF PROCEDURAL HISTORY 

### In Cause No.'s F12-52370-W; F12-52371-W the petitioner was charged with the offense of possession with the intent to 

## deliver cocaine in an amount greater than four grams and un lawful possession of a firearm by a felon. The petitioner was convicted of such offenses on February 14, 2014 and appealed 

## the conviction. On December 18, 2014 the Dallas Court of Appeals affirmed the conviction. No motion for rehearing was filed. On March 18, 2014 this Petition for Discretionary review was 

## timely mailed to the Texas Court of Criminal Appeals.

GROUNDS FOR REVIEW
I. IS SIMPLE KNOWLEDGE OF CONTRABAND POSSESSION?

IIWAS THE TRIAL COURT'S ABUSE OF DISCRETION HARMLESS?

ARGUMENT NUMBER ONE A. REASON FOR REVIEW.The Dallas Court of Appeals decision here is in direct con flict with the decisions of the Honorable Court and the lower appellate courts. TEX.R.APP.P.66.3(a)
B. ARGUMENT. Petitioner requests this court grant Petition to exercise 

### its power to supervise this State's lower court's. Specifically, this court should grant his Petition to examine the rulings of the Dallas Court of Appeals and its holdings that the evi 

### dence was sufficent to support unlawful possession and that the abuse of discretion was harmless.

IS SIMPLE KNOWLEDGE OF CONTRABAND POSSESSION? Given the facts developed at trial there is no question that petitioner knew that there were firearms in the residence. The residence was not his and the his female friend who was the owner of the residence had a constitutional right to possess these firearms. Possession is defined as actual care, custody, control, or management of an item. Tex.Penal Code§ 1.07(a)(39). For a felon to be held criminally responsible for possession of a firearm, the State must prove the felon Voluntarily possessed the fire
arm. Davis v. State,93 s.w.3d 664,667(Tx.App.2002). Possession is deemed voluntary if the accused knowingly obtains or recieves the thing possessed or is aware of his control of thething for a sufficient time to permit him to terminate his control. TEX. PENAL CODE§ £.)!(b);Williams v. State,313 s.w.3d 393,397(Tx.App.2009) The gun that was found under the bed was Bridget's(RR4:70), 

### the simply fact that petitioner knew about the gun does not rise to the level that he possessed it. At most, the evidence 

### cited by the Court of Appeals proves that petitioner knew that there were guns present in the residence, not that he exercised care, custody, control, or management of them, see Oaks v. 

### State,642 s.w.2d 75,77(Tx.Cr.App.1982)(possession means more than being where the action is); Lassaint v. State,79 s-w.3d 

### 736(Tx.App.2002). petitioner's knowledge of the mere presence of the firearms is insufficient to establish the requisite mental state—knowledge of his possession of those drugs. The Court of Appeals erred in its holding on this issue.

ARGUMENT NUMBER TWO WAS THE TRIAL COURT'S ABUSE OF DISCRETION HARMLESS? The Appeals court found petitioner's ground two to be harm less. But this Honorable Court in Everett v. State,707 s.w. 

### 2d 638,641(Tx.Cr.App.1986) stated: "Argument injecting matters not in the record is clearly improper; but argument inviting speculation is even more dangerous because it leaves to the 

### imagination of each juror whatever extraneous 'facts' may be

### needed to support, a conviction. The United States Supreme Court 

### in Berger v. U.S.,295 U.S. 78(1935) stated: "It is fair to say that the average jury, in a greater or less degree, has con 

## fidence that [the obligation to do justice], which so plainly rests upon the prosecuting attorney, will be faithfully observed. 

# Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." 

## After the court abused its discretion in allowing the prose cutor this illegal questioning, the prosecutor could have 

## brought forth evidence of his assertions if it existed he did
not. 

## Although a court is entitled to rely to a great extent on the parties' attorneys to protect their own clients interests, the court, too has a duty to ensure that a criminal defendant re 

## ceives a fair trial. U.S. v. Nobles,422 U.S.225,230(1975). Because this error was never harmless the Court of Appeals erred in it's holding it was.

PRAYER FOR RELIEF 

### For the reasons stated above, it is respectfully submitted 

## that the Court of Criminal Appeals of Texas should grant this Petition for Discretionary Review. Respectfully submitted/CERTIFICATE OF SERVICE The undersigned petitioner hereby certifies that a copy of the foregoing has been mailed, U.S. mail postage prepaid, to the Office of the Criminal District Attorney for Dallas County, Frank Crowley Courts Bldg., 133 N. Riverfront BLVD. 

### LB-19, Dallas, Texas 75207-4399, and to the State Prosecuting Attorney, P.O. Box 12405, Austin, Tx 78711, on this 18th day of March 2015.AFFIRM; and Opinion Filed December 18, 2014.

In The 

## Court ofAppeals ifffftfj district of Qtexaa at Dallas
No. 05-14-00240-CR No. 05-14-00241-CR BOBBYSIMMONS, Appellant V. THE STATE OFTEXAS, Appellee OnAppealfrom the363rdJudicialDistrictCourt Dallas County, Texas Trial Court Cause Nos. F-1252370-Wand F-1252371-W MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Myers OpinionbyJustice Bridges Ajury convicted appellant Bobby Simmons ofpossession with intent to deliver cocaine in cause number F-1252370-W and sentenced him to sixty years' imprisonment. The jury convictedhim ofunlawful possession ofa firearm by a felon incause numberF-1252371-W and 

### sentenced him to five years' imprisonment and a $5,000 fine. On appeal, Simmons challenges the sufficiency ofthe evidence to support his conviction for unlawful possession ofa firearm. He also argues the trial court abused its discretion by permitting the State to improperly crossexamine him andthatthe trial courtviolatedhis constitutional rights to confrontation. We affirm the trial court'sjudgments.Background Dallas Police officers in the narcotics division received an anonymous citizen complaint 

### regarding possible drug transactions at 7353 Chaucer Place. Based on the information, officers used confidential informants to make two controlled buys two days in a row. The narcotics divisionconfirmedthe drugs purchasedwere cocaine. With this information, Sergeant Anthony Martin told his supervisor a search of the 

### location was necessary. On February 15, 2012, officers executed a search warrant. Upon entry into the home, officers found five people inside: four adults and onejuvenile. Simmons was found in the master bedroom. After officers removed the individuals from the home, they began a thorough search. In the masterbedroom, officers found a razorblade, crackcocaine, plastic bowls, and marijuana in 

### plain view. They also found the IDs ofBridget Rowewright and Simmons on the dresser. In a dresser drawer, they found a scale, packaging material, and a box ofammunition. In a drawer that pulled out from under the master bed, officers found a safe and a handgun. Under the handgun, a detective found atemporarypapercopy ofa small ID card with Simmons's name on it. Basedon the IDs and clothingfound in the room, officers believedRowewrightand Simmons both occupiedthe room. Officers also found a black safe in the master bedroom closet. Inside the safe, officers 

### found a package described by SergeantMartin as "unknown contraband'" and anotherhandgun. The handgun was in working condition when it was seized and had live rounds in the chamber. The weapon was "readyto go." 

### Based on the totality ofthe circumstances, which included drug paraphernalia and the 

### amount ofdrugs found in close proximity to weapons, officers testified narcotics were being Sergeant Martin later described the package in the safe as a white substance in a clear baggie.distributed from the residence. They also testified it was reasonable to believe Simmons was in care, custody, and control ofboth the narcotics and the weapons found in the master bedroom. 

### In fact, Sergeant Martintestifiedthe gun under thebedwas within arms' reach, and a handgun in close proximityto drugs is a"tool ofthe trade. You keep yourprotectionwhere your drugs are." The jury convicted Simmons of both possession with intent to deliver cocaine and unlawful possessionofa firearm by a felon. This appeal followed. Sufficiency ofthe Evidence 

### In his first issue, Simmons challenges the sufficiency of the evidence to support his conviction for unlawful possession ofa firearm by a felon because the State failed to prove he actually possessed the firearm. He contends his proximity to the firearm was "merely fortuitous." 

### The standard for determining whether the evidence is legally sufficient to support a conviction is whether, afterviewing the evidence in the light most favorable to the prosecution, 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 (1979); Johnson v. State, 364 S.W.3d 

### 292, 293-94 (Tex. Crim. App. 2012). Thejury is the exclusivejudge ofwitness credibility and the weight to be given testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc). It is also within the exclusive province ofthejury to reconcile conflicts in the evidence. Id. To establish unlawful possession of a firearm by a felon, the State must prove the 

### appellant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or community 

### supervision, parole, or mandatory supervision, whichever is later. TEX. PENAL CODE ANN. §

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### 46.04(a)(1) (West 2011). Simmons admits his status as a convicted felon is not in dispute.2 Rather, he contends the State failed to establish he exercised care, custody, control, or managementofthe firearm. 

### The State does not have to prove an appellant had exclusive custody ofthe firearm. Smithv.State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. refd). However, when there is no evidence the appellantwas in exclusive control ofthe place where the firearm was found, the State mustofferadditional, independent facts and circumstances affirmatively linking him to 

### the firearm. Id. The purpose ofaffirmatively linking the accused to the firearm is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the firearm. Poindexter v. State, 153 S.W.3d402, 406 (Tex. Crim. App. 2005). 

### A nonexclusive listoffactors that can be sufficienteither individually or incombination, to establishpossession include whetherthe appellantownedthe residence where the firearm was 

### found, whether he was in close proximity to the firearm and had ready access to it, whether he attempted to flee, whether his conduct indicated a consciousness ofguilt, whether he had a 

### special connection to the firearm, and whether he made incriminating statements. Smith, 176 S.W.3d at 916. No set formula exists to dictate a finding of affirmative links sufficient to 

### support an .inference ofknowing possession ofcontraband. Id. It is the "logical force" ofthe 

### factors, not the number of factors present, that determines whether the elements of the offense have been established. Id. 

### Viewing the evidence in the light most favorable to the verdict, the State introduced a government document in which Simmons listed the residence as his address. Simmons was 

### present in the master bedroom, where the guns were found, during the search. While the guns

2 The State introduced pen packet information regarding an August 10,2009 conviction for burglary of a habitation.

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### were not in plain view, SergeantMartin testified the gun in the drawer under the bed was within arms' reach. Moreover, a temporary ID card with Simmons's name was found underneath the
gun. 

### The jury heard testimony about drugs and drug paraphernalia found in the master 

### bedroom. They also heard the room contained male clothing and shoes indicating Simmons occupied the room with Rowewright. When asked about finding drugs and a handgun in close proximity in the bedroom, Sergeant Martin testified, "It's absolutely a tool ofthe trade. You 

### keep your protection where your drugs are." Because evidence indicated Simmons stayed in the room, his fingerprints were lifted from a scale thereby linking him to the drug paraphernalia and drugs in the room, and his temporary ID was found under the gun, the jury could logically conclude he exercised care, custody, control, or management of a firearm, which he had for protectionwhile dealing drugs. 

### In reaching this conclusion, we reject Simmons's argument his conviction cannot stand because he testifiedhe did notlive in the residence, the police did not find his fingerprints on the 

### guns, he denied possessing the guns, and hetestified Rowewrightplaced his identification in the room when he was incarcerated for a prior burglary offense. Simmons's arguments simply challenge the jury's conclusions, as the exclusive judge of witness credibility, to weigh and determine conflicts in the evidence. We must deferto thejury's determination. See Wesbrook, 29S.W.3datlll. 

### We further reject his contention that thejury's failure to find he "used" or "exhibited a 

### deadly weapon" in the drug possession case has bearing on the sufficiency of the evidence for unlawful possession of a firearm. As the State argues, the weapons were stored in a drawer attached to the master bed and in a safe, which explains thejury's reluctance in finding that a 

### weapon was "used" or "exhibited" during theoffense. Thejury's conclusion,however, does not
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### address whether Simmons "possessed a firearm" in violation ofsection 46.04(a)(1). See Tex. Penal Code Ann. § 46.04(a)(1). Accordingly, the evidence is legally sufficient to support Simmons's conviction for unlawful possession of a firearm by a felon in cause number F1252371-W. We overrule Simmons's first issue. Cross-Examination of AppellantBasedon Facts Not in Evidence and Violation ofthe

ConstitutionalRightto Confrontation 

### Because Simmons's second and third issues are based on the same objectionable 

### testimony, we address them together. Simmons argues the trial court abused its discretion by allowing the State to ask him improper questions that assumed facts not in evidence and the 

### questions concerned potentialout-of-court statements by a non-testifying accomplice witness, which violated his constitutional right to confrontation. The objectionable exchange is as follows: 

### Q. The address on your tax return, in y'all's room, Bridget, Walter, and Ricky say you stayed, you never seen those drugs in there? A. No, sir. No, sir. 

### Q. Are you aware when Bridget tells the detective that you stay in the room?Didyou - - did you knowthat? A. No, sir. 

### Q. If I played you an interrogation interview where Bridget says that, that's a lie? A. I don't stay there. I been in there before. Don't mean I staythere. Idon't live there. Q. Again, when Bridgettells the detective
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### [DEFENSE COUNSEL]: Judge, I object. This is 

### presuming evidence submitted about an interview and I object on those grounds. THE COURT: It's cross-examination. Overruled.

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### In his second issue, Simmons argues this exchange resulted in the State presenting evidence to the juryregarding informationRowewrightprovidedto police about hisstatus as an 

### occupantof theresidence, which exceededthebounds ofpropercross-examinationbyassuming facts not in evidence. 

### Assuming without deciding that the State's questions to Simmons were improperly 

### admitted as presuming facts not inevidence, weconclude Simmons was not harmed by the evidence. Texas Rule of Appellate Procedure 44.2(b) states that any error, other than 

### constitutional error, that does notaffect substantial rights must bedisregarded. Tex.R.App. P. 

### 44.2(b). In otherwords, wedisregardtheerroneous admissionofevidenceif it did notadversely affect thejury's verdict, or had but a slight effect on thejury's verdict. Johnson, 84 S.W.3d at 729. 

### Simmons argues the admission ofthe evidence moved the State's case from "one ofnon

### persuasion to one of persuasion." However, the allegedstatements Rowewrightmade to police were not the only evidence linkingSimmonsto the masterbedroom. Forexample, thejury heard he listed the residence as his address on a government document. They also heard from several detectives aboutmen's clothing and shoes found in the bedroom. Based on the men's clothing and their knowledge that Rowewrightwas Simmons's girlfriend, thejury could infer he lived in the room, despite his denial. Moreover, detectives found two identification cards with 

### Simmons's name in the master bedroom. Thus, we cannot agree with Simmons that the State's questions moved the case from "one ofnon-persuasion to one ofpersuasion." Accordingly, Simmons has failed to show the admission ofthe evidence adversely affectedthejury's verdict. We overrule his second issue. 

### In his third issue, Simmons argues his constitutional right to confrontation was violated because Rowewrightdid nottestify, the State never played any police interview ofher, nor did it

### admit any statements made by her. Therefore, he contends, the State offered the unproven, outof-court testimonial statement of a non-testifying accomplice. The State responds Simmons failed to preserve his issue for review. We agree. 

### To preserve error, a defendant must make a timely, specific objection and obtain an adverse ruling by the trial court. Tex. R. App. P. 33.1. Even constitutionalerrormay be waived 

### for failure to object at trial. Briggsv. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (en banc). Specifically, a defendant waives his constitutional right to confront witnesses ifhe does not object at trial to the denial ofthat right. See Eustis v. State, 191 S.W.3d 879, 885 (Tex. 

### App.—Houston [14thDist.] 2006, pet. refd); see also Lytlev. State,No. 05-10-01134-CR, 2012 WL 266450, at *2 (Tex. App.—Dallas Jan. 31, 2012, no pet.) (mem. op., not designated for publication). While Simmons argues the contextofthe objectionprovided the trial court and the State with adequate notice that he was objecting on the basis ofthe Confrontation Clause, we do not agree. Counsel's objection did not, in any way, reference the right to confrontation. Ifthe record indicates an objection, besides presuming facts not in evidence, it might be that counsel
was objecting on the basis ofhearsay. However, courts have consistently held that a hearsay objection does not preserve error on a Confrontation Clause claim. See Eustis, 191 S.W.3d at 886; see also Lytle, 2012 WL 266450, at *2. Accordingly, Simmons failed to preserve his third issue for ourreview, and it is overruled.

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## Court ofAppeals 

## ifftftfj Bistrtct ofQfexas at Dallas JUDGMENT 

### BOBBY SIMMONS, Appellant No. 05-14-00240-CR V. THE STATEOF TEXAS, Appellee 

### OnAppealfrom the363rd'Judicial-District' Court, Dallas County, Texas Trial CourtCause No. F-1252370-W. 

### Opiniondeliveredby Justice Bridges. JusticesLang-Miers andMyers participating. 

### Based on the Court's opinion ofthis date, thejudgmentofthe trial court isAFFIRMED. JudgmententeredDecember 18, 2014.

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