NOS. PD-1176-15 & PD-1177-15 

IN THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

AT AUSTIN 

_________________________ 

MALCOLM MCCLENON, 

 Petitioner/Appellant 

v. 

THE STATE OF TEXAS, 

Respondent/Appellee 

_________________________ 

On Appeal in Cause Nos. F12-54585-W & F12-54586-W 

from the 363rd Judicial District Court 

Of Dallas County, Texas 

And on Petition for Discretionary Review 

from the Fifth District of Texas at Dallas 

In Cause Nos. 05-14-00833-CR & 05-14-00834-CR 

_________________________ 

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

_________________________ 

 Counsel of Record:

 Lynn Richardson Kathleen A. Walsh 

 Chief Public Defender Assistant Public Defender 

 State Bar Number: 20802200 

 Katherine A. Drew 133 N. Riverfront Blvd., LB 2 

 Chief, Appellate Division Dallas, Texas 75207-399 

 (214) 653-3550 (telephone)

 (214) 653-3539 (fax) 

kwalsh@dallascounty.org 

PD-1176-15, PD-1177-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/7/2015 11:10:50 AM

Accepted 10/8/2015 2:33:30 PM

ABEL ACOSTA

CLERK
ii 

LIST OF PARTIES 

TRIAL COURT JUDGE 

Andrew J. Kupper, Presiding Judge by assignemnt 

APPELLANT 

Malcolm McClenon 

APPELLANT’S ATTORNEYS 

AT TRIAL 

Matthew Arnold, State Bar No. 00789129 

3500 Maple Avenue, Suite 400 

Dallas, TX 75219 

ON APPEAL 

Kathleen A. Walsh, State Bar No. 20802200 

Assistant Public Defender 

Dallas County Public Defender’s Office 

133 N. Riverfront Blvd., LB 2 

Dallas, Texas 75207-4399 

STATE’S ATTORNEYS 

AT TRIAL 

Dimitri Anagnostis, State Bar No. 24066767 

Andrew Novak, State Bar No. 24048695 

ON APPEAL 

G. Brian Garrison, State Bar No. 24065276 

Assistant District Attorneys 

Dallas County District Attorney’s Office 

Frank Crowley Courts Building 

133 N. Riverfront Blvd., LB-19 

Dallas, Texas 75207-4399 
iii 

TABLE OF CONTENTS 

INDEX OF AUTHORITIES ..................................................................................... iv

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

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

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1

QUESTIONS FOR REVIEW ................................................................................... 2 

QUESTION NO. 1 

Whether the Court of Appeals applied an improper standard of 

review when it determined that the evidence was sufficient to 

affirmatively link Appellant to the marijuana without considering all 

of the evidence in its analysis. 

QUESTION NO. 2 

Whether the Court of Appeals applied an improper standard of 

review when it determined that the evidence was sufficient to 

affirmatively link Appellant to the firearm without considering all of 

the evidence in its analysis. 

ARGUMENT ............................................................................................................. 2

The Court of Appeals' Opinion pertaining to the evidence linking 

Appellant to the marijuana .............................................................................. 3

The Court of Appeals’ Opinion pertaining to the evidence linking 

Appellant to the firearm ................................................................................... 6 

Conclusion ....................................................................................................... 7 

PRAYER FOR RELIEF ............................................................................................ 9

CERTIFICATE OF SERVICE .................................................................................. 9

CERTIFICATE OF COMPLIANCE ....................................................................... 10 

APPENDIX 
iv 

INDEX OF AUTHORITIES

Cases 

Brooks v. State, 

323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................. 2 

Jackson v.Virginia, 

443 U.S. 307 (1979) ........................................................................................... 2, 3 

McClenon v. State, 

Nos. 05-14-00833-CR, 05-14-00834-CR, 2015 Tex. App. LEXIS 8394 

(Tex. App.—Dallas August 11, 2015) (not designated for publication) ......passim

Merritt v. State, 

368 S.W.3d 516 (Tex. Crim. App. 2012) ............................................................... 3 

Wirth v. State, 

361 S.W.3d 694 (Tex. Crim. App. 2012) ........................................................... 3, 8
TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

COMES NOW Malcolm McClenon, Petitioner herein and Appellant before 

the Court of Appeals, and respectfully submits this Petition for Discretionary 

Review. 

STATEMENT REGARDING ORAL ARGUMENT 

 Appellant believes that the facts of the case and the issues raised are such 

that oral argument will not significantly aid this Court’s consideration and 

disposition of this Petition. 

STATEMENT OF THE CASE

A jury convicted Appellant of the offense of possession of marijuana in the 

amount of fifty pounds or less but more than five pounds enhanced by a prior 

conviction for aggravated assault, and the offense of unlawful possession of a 

firearm by a felon and assessed punishment at 15 years’ imprisonment in the 

marijuana case and 10 years’ imprisonment in the firearm case. (RR5: 29-30, 70-

71; CR: 68; CR1: 69). The jury also found that Appellant used or exhibited a 

deadly weapon in the marijuana case. (RR5: 30; CR: 70-71). 

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE 

On August 11, 2015, in a memorandum opinion, the Court of Appeals for 

the Fifth District of Texas affirmed Appellant’s conviction. McClenon v. State, 
 2

Nos. 05-14-00833-CR, 05-14-00834-CR-CR, 2015 Tex. App. LEXIS 8394 (Tex. 

App.—Dallas August 11, 2015) (not designated for publication). (See Appendix). 

No motion for rehearing was filed. This Petition is timely if filed on or before 

October 12, 2015.1

QUESTIONS FOR REVIEW

QUESTION NO. 1 

Whether the Court of Appeals applied an improper standard of 

review when it determined that the evidence was sufficient to 

affirmatively link Appellant to the marijuana without considering all 

of the evidence in its analysis. 

QUESTION NO. 2 

Whether the Court of Appeals applied an improper standard of 

review when it determined that the evidence was sufficient to 

affirmatively link Appellant to the firearm without considering all of 

the evidence in its analysis. 

ARGUMENT 

While an appellate court reviews the evidence in the light most favorable to 

the verdict, that court must review all of the evidence to 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, 319 (1979); Brooks v. State, 

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Evaluating the evidence in the light 

 

1

 Appellant’s motion for extension of time in which to file the Petition for Discretionary Review 

was granted by this Court on September 14, 2015. 
 3

most favorable to the verdict is not the same as looking only to the State’s evidence 

of guilt and ignoring the defense evidence. An appellate court cannot only 

emphasize evidence that favors it’s holding while ignoring controverting 

testimony. See Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012) 

(finding that a court of appeals incorrectly applied the Jackson standard by 

employing a “divide-and-conquer” approach which failed to consider all of the 

evidence); Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012) (reversing 

a court of appeals for selectively emphasizing “snippets of the record that 

ostensibly favored its holding” while ignoring controverting testimony). 

In rejecting Appellant’s challenge to the sufficiency of the evidence to 

affirmatively link him to the marijuana and firearm found hidden in the house in 

which Appellant had been staying, it is clear from the opinion that the Fifth Court 

of Appeals applied an improper standard of review when it considered only the 

evidence which tended to support the verdict and did not discuss or analyze the 

controverting evidence which refuted any connection between Appellant and the 

contraband. 

The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to 

the marijuana. 

Although the court of appeals properly states that Appellant was present 

when the search was conducted and that marijuana was found hidden beneath an 

unfinished stairway in the back of the house and in a hidden compartment in the 
 4

dining room, the court failed to consider and discuss the fact that the evidence also 

showed that there were two other occupants in the house at the time of the search 

(RR3: 42-43); that Appellant did not have the exclusive custody and control of the 

house, nor any ownership interest in the house (RR3: 44-45, 49-50; RR4: 22-25, 

32, 87-88); that the owner of the house, along with other workers, had complete 

access to the house while Appellant was staying there (RR4: 24, 87-88); or that the 

officers failed to find any personal items tying Appellant to the house. (RR3: 156-

57). McClenon, 2015 Tex. App. LEXIS 8394 at *10-11.The court of appeals also 

failed to consider and discuss the fact that the marijuana behind the stairs could not 

be seen unless someone was going up the stairs or the fact that Appellant would 

have never gone up the stairs because the stairs were still under construction and 

did not lead to anything. (RR3: 90-91). Id. Although the court appears to consider 

the fact that the marijuana found in the dining room was in a hidden compartment 

in the wall which could not be seen by a person walking through the room, the 

court discounts the significance of this evidence by referring to testimony from the 

officers that the house as “pretty small” and the marijuana was hidden in such as to 

be accessible only to one who exercised control over the house without 

acknowledging the fact that Appellant did not have the exclusive custody and 

control of the house. Id. 
 5

In its opinion, the court of appeals points to the officer’s testimony regarding 

the odor of marijuana in the house and the fact that the marijuana found was a 

high-grade variety that is more expensive, stronger, and more pungent than 

“regular” marijuana, thus giving off a distinct odor which someone living in the 

house would have been aware without giving any consideration to the fact that the 

evidence also showed that Appellant was an admitted “pothead” who smoked 

regularly and thus would not consider the odor of marijuana in the house to be 

significant or indicative of anything other than his own use. (RR3: 48; RR4: 35, 

37-39, 49-50, 57, 65, 67, 69-73, 81). Id. 

In its opinion, the court of appeals refers to the fact that the officers found a 

large number of baggies and a scale, suggesting that the marijuana was being 

broken down, packaged, and sold out of the house; however, the court did not 

consider or discuss the fact that the plastic baggies were found strewn about in a 

closed closet where there was no marijuana or identifying information found, or 

the fact that one of the officers testified that someone who was not a police officer 

may have placed no significance on the empty bags in the closet and just thought 

that someone was saving bags. (RR3: 180-81). Nor did the court consider or 

discuss the fact that there was no specific testimony regarding where the scale was 

found and whether it was found with the baggies. (RR3: 93, 116-17). Id. at *11. 
 6

In its opinion, the court of appeals refers to the fact that $975 in cash was 

found in various denominations during the search but does not consider or discuss 

the fact that no officer could testify where the money had been found. (RR3: 153-

55). Id. at *11-12. 

And finally in its opinion, the court of appeals refers to the fact that text 

messages indicative of drug transactions and photos of money and a gun were 

found on the two cell phones seized from the residence without considering or 

discussing the fact the photos and text messages on the phones were not connected 

to Appellant in any way but were connected to Dominque Sharper, one of the other 

occupants present in the residence at the time of the search. (RR3: 164-72, 174-75; 

State Exhibits 45 thru 62). Id. at *9. 

The Court of Appeals’ Opinion pertaining to the evidence linking Appellant to 

the firearm. 

In its analysis of the evidence pertaining to the firearm, the court of appeals 

correctly refers to the fact that the gun was found along with some of the marijuana 

in the hidden compartment in the dining room and the officer’s testimony that a 

person walking through the dining room would not have known about the hidden 

compartment but discounts such evidence by referring to the officer’s testimony 

regarding the strong, pungent odor that would have been apparent to anyone in the 

house and the fact that Appellant expressed his familiarity with the type of 

marijuana seized in this case. McClenon, 2015 Tex. App. LEXIS 8394 at *14-15. 
 7

The court also refers to Kelly’s testimony that about a week before the arrest, he 

went to the house and saw a firearm in the back of the house where the remodeling 

work was being done. Id. at *15. What the court fails to consider or discuss in its 

analysis is the fact that other people not only had access to the house but were 

present in the house both when the firearm was found by the officers, and when 

Kelly saw a gun in the house a week prior to the arrest. The court also fails to 

consider or discuss the fact that no fingerprints were taken from the gun and no 

fingerprints were taken from the compartment in the wall in which the gun was 

found. (RR3: 131-32). And finally, the court fails to consider or discuss the fact 

that the only evidence directly linking anyone to the firearm were the pictures 

found on Sharper’s phone showing Sharper holding a gun and money or Officer 

Wagner’s testimony that there was a pretty clear connection between Sharper and 

the gun since the photo of the gun on Sharper’s phone appeared to be the same gun 

that was seized from the residence. (RR4: 14). 

Conclusion. 

As set forth above, there was a significant amount of evidence which the 

Court of Appeals failed to consider or discuss in its sufficiency review. Proper 

consideration of this evidence would indicate that the State failed to present 

sufficient evidence to affirmatively link Appellant to either the marijuana or the 

firearm found hidden in the house. Appellant’s mere presence in the house does 
 8

not link him to contraband found hidden in its bowels. While it would be 

reasonable to infer that Appellant had some connection to the house as a tenant 

because he had been staying there for the past two and half weeks, there is also 

evidence that other people were connected to the house, including the owner and 

other workers who were working on the remodeling project in the house. Even 

when Appellant was arrested, he was not alone at the house; both Sharper and 

Kelly were there with him. Furthermore, the only evidence linking anyone to either 

the drugs or the firearm was unnequivocal evidence from Sharper’s own cell 

phones showing Sharper to be the one in possession of the contraband. 

Consequently, this Court should conduct an independent review of the sufficiency 

of the evidence in these cases. Wirth, 361 S.W.3d at 698. In the alternative, this 

Court should remand this case to the Court of Appeals with instructions to conduct 

a proper sufficiency review. 
 9

PRAYER FOR RELIEF 

For the reasons herein alleged, Appellant prays this Court grant this petition 

and, upon review, reverse the decision of the Court of Appeals. 

 Respectfully submitted, 

 /s/ Kathleen A. Walsh 

 Kathleen A. Walsh 

Lynn Richardson Assistant Public Defender 

Chief Public Defender State Bar No. 20802200 

Dallas County Dallas County Public Defender’s Office 

 Frank Crowley Courts Building 

 133 N. Riverfront Blvd., LB-2 

 Dallas, TX. 75207-4399 

 (214) 653-3550 (telephone) 

 (214) 653-3539 (fax) 

CERTIFICATE OF SERVICE 

 I hereby certify that on the 7th day of October, 2015, a true copy of the 

foregoing petition for discretionary review was served by electronic delivery to 

the Appellate Division2

 of the Dallas County Criminal District Attorney’s Office 

at DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to 

Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov. 

 /s/ Kathleen A. Walsh 

 Kathleen A. Walsh 

 

2

 G. Brian Garrison, the original State’s attorney on appeal, is no longer employed by the Dallas 

County District Attorney’s Office. 
 10

CERTIFICATE OF COMPLIANCE 

 I hereby certify that the word count in this document, which is prepared in 

Microsoft Word 2010, is 2,470.

/s/ Kathleen A. Walsh 

Kathleen A. Walsh 

 
APPENDIX 
fi·LexisNexis· 

No Shepard's Signa)TM 

As of: October 6, 2015 12:42 PM EDT 

Mcclenon v. State 

Court of Appeals of Texas, Fifth District, Dallas 

August 11, 2015, Opinion Filed 

No. 05-14-00833-CR, No. 05-14-00834-CR 

Reporter 

2015 Tex. App. LEXJS 8394 

MALCOLM MCCLENON, Appellant v. THE STATE OF Judgment affirmed. 

TEXAS, Appellee 

Notice: PLEASE CONSULT THE TEXAS RULES OF 

APPELLATE PROCEDURE FOR CITATION OF 

UNPUBLISHED OPINIONS. 

Prior Hist ory: [* I] On Appeal from the 363rd Judicial 

District Court, Dallas County, Texas. Trial Court Cause Nos. 

Fl2-54585-W & F12-54586-W. 

Core Terms 

marijuana, contraband, deadly weapon, drugs, firearm, door, 

gun, weapon, proximity, bag, exhibited, phone, possession 

of marijuana, narcotics, factors, pounds, odor, hidden 

compartment, evidence show, arrested, custody, handgun, 

knocked, bills, shelf 

Case Summary 

Overview 

HOLDINGS: [!]-The evidence showed that defendant was 

present when the search was conducted and suggested the 

marijuana was being broken down, packaged, and sold out 

of the house, and the large number of $20 bills found by 

officers was consistent with someone dealing drugs on a 

$20-a-gram level; [2]-The evidence was sufficient for a 

rational jury to find beyond a reasonable doubt that defendant 

exercised care, custody, control, or management of the 

firearm and the jury was not required to believe defendant's 

testimony that he had no idea to whom the handgun 

belonged; [3]-The evidence showed that the handgun, 

which had been reported stolen, was loaded and ready to be 

fired. 

Outcome 

LexisNexis® Headnotes 

Criminal Law & Procedure > ... > Standards of Review > 

Substantial Evidence > Sufficiency of Evidence 

HNI In reviewing the sufficiency of the evidence, the 

appellate court views all the evidence in the light most 

favorable to the verdict and determines whether any rational 

trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. The appellate court 

assumes the fact finder resolved conflicts in testimony, 

weighed the evidence, and drew reasonable inferences in a 

manner that supports the verdict. The appellate court also 

defers to the trier of fact's determination of witness 

credibility and the weight to be given their testimony. 

Criminal Law & Procedure > ... > Possession > Simple 

Possession > Elements 

Criminal Law & Procedure > Criminal Offenses > Controlled 

Substances > Definitions 

HN2 To establish unlawful possession of a controlled 

substance, the State must prove that appellant exercised 

control, management, or care of the substance, and that he 

knew the matter possessed was contraband. The evidence 

may be either direct or circumstantial, but must show 

appellant's connection to the drugs was more than just 

fortuitous. Although appellant's mere presence where drugs 

are found, without more, is insufficient to establish 

possession, appellant's proximity to the drugs combined 

with other evidence can prove possession beyond a 

reasonable doubt. 

Criminal Law & Procedure > ... > Possession > Simple 

Possession > Elements 

Criminal Law & Procedure > Criminal Offenses > Controlled 

Substances > Definitions 
2015 Tex. App. LEXIS 8394, *I 

HN3 A nonexclusive list of factors that can be sufficient 

either singly or in combination, to establish possession of 

contraband include: (I) presence when search is conducted; 

(2) whether the contraband is in plain view; (3) proximity to 

and the accessibi lity of the contraband, (4) the accused 

being under the influence of narcotics when arrested; (5) 

possession of other contraband or narcotics when arrested; 

(6) incriminating statements made by the accused when 

arrested; (7) an attempt to flee; (8) furtive gestures; (9) an 

odor of contraband; (I 0) the presence of other contraband or 

drug paraphernalia; (11) whether the accused 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) possession of a large amount of cash; (14) 

conduct indicating a consciousness of guilt; (15) the quantity 

of the contraband; and ( 16) whether the accused was the 

driver of the automobile in which the contraband was found. 

The number of factors linking a defendant to contraband is 

not as important as the logical force they create to support 

an inference of knowing possession of contraband. 

Criminal Law & Procedure > Criminal Offenses > Weapons 

Offenses> Definitions 

Criminal Law & Procedure > ... > Weapons Offenses > 

Possession of Weapons > General Overview 

HN4 Possession means actual care, custody, control, or 

management, Tex. Penal Code Ann. § J.07{a)(39). As in 

cases involving the possession of a controlled substance, 

when an individual is charged with the unlawful possession 

of a firearm, the State must prove the accused (I) exercised 

care, custody, control, or management over the firearm, and 

(2) knew the object was a firearm. If the accused is not in 

exclusive possession of the area where the contraband or 

firearm is found, the evidence must link the accused to the 

contraband or weapon. Regardless of whether the evidence 

used is direct or circumstantial, the State must establish that 

the accused's connection with the firearm was more than 

just fortuitous. Mere presence at the location where the 

contraband is found is insufficient, by itself, to establish 

actual care, custody, or control of the contraband. But when 

combined with other links, either direct or circumstantial, 

presence or proximity may be sufficient to establish that 

element beyond a reasonable doubt. 

Criminal Law & Procedure > ... > Weapons Offenses > 

Possession of Weapons > General Overview 

Criminal Law & Procedure > Criminal Offenses > Weapons 

Offenses> Definitions 

HNS There is no set formula to determine what links are 

"logical force" or degree to which the factors, alone or in 

combination, tend to link the accused to the weapon. Factors 

that may establish the link include (I) whether the contraband 

or weapon was in plain view or found on the accused; (2) 

the accused's proximity and accessibility to the weapon or 

contraband; (3) whether the accused owned or controlled 

the place where the contraband or weapon was found; (4) 

whether the accused made any incriminating statements; (5) 

whether the accused tried to flee; and (6) whether the 

accused made furtive gestures. 

Criminal Law & Procedure > Criminal Offenses >Weapons 

Offenses > Definitions 

Criminal Law & Procedure > ... > Use of Weapons > 

Commission of Another Crime > Elements 

HN6 Tex. Code Crim. Proc. Ann. art. 42. 12. § 3g(a)(2) 

permits the entry of a deadly weapon finding when it is 

shown that a defendant used or exhibited a deadl.y weapon, 

or he was a party to the offense and knew that a deadly 

weapon would be used or exhibited. In the context of a 

deadly weapon finding, the term "use" means any 

employment of a deadly weapon, even simple possession, if 

that possession facilitates the associated felony. However, 

the term "exhibit'' requires a weapon to be consciously 

shown, displayed or presented to be viewed. 

Criminal Law & Procedure > Criminal Offenses >Weapons 

Offenses > Definitions 

Criminal Law & Procedure > ... > Use of Weapons > 

Commission of Another Crime > Elements 

HN7 When reviewing the sufficiency of the evidence to 

support a deadly weapon finding, the issue is whether the 

weapon was found to have facilitated the defendant's 

possession and intended distribution of the drugs. The 

defendant's proximity to the gun at the time of the search is 

not dispositive. Likewise, ownership is not necessary to 

establish that a defendant used a deadly weapon i111 violation 

of Tex. Code Crim. Proc. Ann. art. 42. 12. § 3g. Tihe focus is 

on the proximity of the guns to the drugs, not the proximity 

of the guns to the defendant. The appellate court must 

determine whether the cumulative effect of the factors could 

have allowed a rational jury to determine that the defendant 

used the weapons to protect the drugs and the proceeds 

therefrom. If the appellate court determines the State failed 

to show a defendant used a deadly weapon in the commission 

of an offense, it may delete the deadly weapon finding. 

Counsel: For Appellants: Katherine Drew, Kathleen Walsh, 

Lynn Richardson, Dallas, TX. 

sufficient and the number of links is not as important as the For Appellees: G. Brian Garrison, Susan Hawk, Dallas, TX. 

Page 2 of 7 
2015 Tex. App. LEXIS 8394, *I 

Judges: Before Justices Fillmore, Myers, and Evans. 

Opinion by Justice Myers. 

Opinion by: LANA MYERS 

Opinion 

MEMORANDUM OPINION 

Opinion by Justice Myers 

Appellant Malcolm McCJendon was indicted for 

intentionaEly and knowingly possessing marijuana in an 

amount of fifty pounds or Jess but more than five pounds. 1 

The State alleged appellant used or exhibited a deadly 

weapon in the commission of the offense. Appellant also 

was indicted for the unlawful possession of a firearm by a 

felon.2 Appellant pleaded not guilty to the charges and 

pleaded not true to the deadly weapon allegation. The jury 

found appellant guilty as charged, made an affirmative 

deadly weapon finding, and assessed punishment at fifteen 

years' imprisonment in the marijuana case and ten years in 

the firearm case. The trial court ordered the sentences to be 

served concurrently. In three issues, appellant argues the 

evidence is insufficient to support the convictions for 

possession of marijuana and possession of a firearm by a 

felon, and that he used or exhibited a deadly weapon during 

the commission of the possession of marijuana offense. (".'2] 

We affirm .. 

D1scuss10N 

Possession of Marijuana 

In his first issue, appellant contends the evidence is 

insufficient to support the conviction in 05-14-00833-CR 

for possession of marijuana in the amount of fifty pounds or 

Jess but more than five pounds. He argues that he was not in 

close proximity to the drugs, nor is there evidence the drugs 

were found in plain view while appellant was in the home, 

and that he did not have exclusive custody and control of the 

house where the drugs were found. Appellant also argues 

the other factors do not link him to the contraband. 

HNI In reviewing the sufficiency of the evidence, we view 

all 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. 313. 99 

S. Ct. 2781. 61 L. Ed. 2d 560 (1979); Brooks v. State. 323 

S. W.3d 893. 899 (Tex. Crim. App. 2010). We assume the fact 

finder resolved conflicts in testimony, weighed the evidence, 

and drew reasonable inferences in a manner that supports 

the verdict. Clayton v. State. 235 S. W.3d 772. 778 (Tex. 

Crim. App. 2007). We also defer to the trier of fact's 

determination of witness credibility and the weight to be 

given [*3] their testimony. Brooks. 323 S. W.3d at 899. 

HN2 To establish unlawful possession of a controlled 

substance, the State must prove that appellant exercised 

control, management, or care of the substance, and that he 

knew the matter possessed was contraband. See Poindexter 

v. State. 153 S. W.3d 402. 405 (Tex. Crim. App. 2005). The 

evidence may be either direct or circumstantial, but must 

show appellant's connection to the drugs was more than just 

fortuitous. See Evans v. State. 202 S. W.3d 158. 161-62 (Tex. 

Crim. App. 2006). Although appellant's mere presence 

where drugs are found, without more, is insufficient to 

establish possession, appellant's proximity to the drugs 

combined with other evidence can prove possession beyond 

a reasonable doubt. See id. at 162. 

HN3 A nonexclusive list of factors that can be sufficient 

either singly or in combination, to establish possession of 

contraband include: (I) presence when search is conducted; 

(2) whether the contraband is in plain view; (3) proximity to 

and the accessibility of the contraband, (4) the accused 

being under the influence of narcotics when arrested; (5) 

possession of other contraband or narcotics whe:n arrested; 

(6) incriminating statements made by the accused when 

arrested; (7) an attempt to flee; (8) furtive gestures; (9) an 

odor of contraband; (I 0) the presence of other contraband or 

drug paraphernalia; [*4] ( 11) whether the accused 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) possession of a large amount of cash; 

(14) conduct indicating a consciousness of guilt; (15) the 

quantity of the contraband; and (16) whether the accused 

was the driver of the automobile in which the contraband 

was found. See Evans. 202 S. W.3d at 162 n. 12; McOuarters 

v. State. 58 S. W.3d 250. 259 (Tex. App.- Fort Worth 2001. 

pet. refd). The number of factors linking a defendant to 

contraband is not as important as the logical force they 

create to support an inference of knowing possession of 

contraband. Taylor v. State. 106 S. W.3d 827. 831 (Tex. 

App.- Dallas 2003. rw pet.). 

Cause number 05-14-00833-CR; trial court cause number F12-54585-W. 

2 Cause number 05-14-00834-CR; trial court cause number F12-54586-W. 

Page 3 of 7 
2015 Tex. App. LEXIS 8394, *4 

The evidence in this case shows that at around 11 :30 a.m. on 

April 17, 2012, Dallas Police Officer Daniel Foster and 

several other officers conducted a "knock-and-talk" 

investigation at a duplex house located at 310 Cumberland 

Street, Dallas, Texas. The officers were part of a narcotics 

team and their investigation was in response to a "drug 

complaint" the department had received. After Officer 

Foster knocked on the door, appellant opened the door 

"fairly quickly," exited, and closed it behind him. He was 

talking on a cell phone. The officers could smell the odor of 

marijuana coming from inside the house. In response to 

Officer [*5] Foster's questions, appellant said he lived at the 

location. After appellant stepped outside and shut the door, 

another officer told Officer Foster he had seen someone run 

up and lock the door behind appellant. That officer, Chris 

Wagner, testified that he had looked through the window 

into the living room after appellant stepped outside and saw 

a man wearing a white I-shirt run to the front door and lock 

it, grab a small bag from the floor area, and then run to the 

rear of the residence. The bag was later recovered during the 

search and marijuana was found inside. 

When Detective Foster asked appellant whether there were 

any other people living in the house, appellant admitted 

there were other people in the house. Appellant knocked on 

the front door- he discovered it had been locked behind 

him- and two other people came out onto the porch area. 

Appellant told Officer Foster he had been renting the house, 

living there for the last two or two and a half weeks, and that 

he was working on the house for the "manager," who lived 

next door. Appellant told the officers the other two 

individuals, Dominique Sharper and Michael Kelly, were 

just visiting him. Appellant admitted they had been smoking 

[*6] marijuana but denied there were any other drugs in the 

house. 

Officer Foster asked appellant for consent to search the 

house. Appellant replied that he would prefer they ask the 

"manager" for consent to search because he owned the 

property; appellant was just renting the apartment from him. 

Another officer knocked on the door but they were unable to 

make contact with anyone at the next door unit; it appeared 

to be vacant. Officer Foster testified that after he informed 

appellant there was probable cause to believe there were 

drugs inside the house and that the officers cou ld obtain a 

search warrant, appellant consented to letting the officers 

search the house. 

Upon commencing the search, the first thing officers found 

was ten bags of marijuana shoved under a staircase that was 

under construction at the rear of the house. Officer Wagner 

testified that someone walking down the stairs would not 

see the bags of marijuana, but they would be able to see 

them if they were going up the stairs. Officer Wagner also 

discovered a "cutout" with a shelf in the wall of the dining 

room. The shelf was loose. When he picked up the shelf, 

Officer Wagner found a hidden compartment containing 

more marijuana [*7] and a gun. The gun was ready to fire. 

Officer Wagner testified that a person walking through the 

room would not know the hidden compartment was there. 

Officer Wagner also testified that they found a scale 

containing marijuana residue and a large number of empty 

bags that cou ld have been used to break the marijuana down 

to sell it on the street. In the living room, officers found a 

container inscribed with the phrase, "A friend with weed is 

a friend indeed," and a Tupperware container with the word 

"kush" on it. Another officer, Rebecca Barrios, testified that 

she found mail with appellant's name on it. The mai l, which 

was found on a coffee table, was addressed to appellant at 

an address on Abrams Road, Dallas, Texas, and was dated 

December 1, 2011. Officers found a Texas Department of 

Criminal Justice, Parole Division, "electronic monitoring 

program/daily curfew schedu le" that contained appellant's 

printed name, TDCJ number, and the same Abrams Road 

address. The schedule stated it was valid from May 12, 2011 

until completed successfully. Officers also found a red cell 

phone and a black cell phone. 

A total of $975 in various denominations of currency was 

found during the search: 35 $20 [*8] bills (totaling $700), 

15 $10 bills ($150), 15 $5 bills ($7 5), 40 $1 ($40), and 40 

quarters ($10). Officer Barrios testified that the large 

number of $20 bills was consistent with someone dealing 

drugs on a $20-a-gram level. Additionally, Michael Kelly, 

appellant's cousin, testified that appellant's financial 

situation was precarious: 

Q. [PROSECUTOR:] Did he seem to be getting by? 

What was his financial situation? 

A. Really, there was no financial situation. 

Q. What do you mean? 

A. He really didn't have money. Didn't have money. 

You know, what he had is what people wou ld help him 

out. I never known him to have since then no more than 

30 or $40. To him, it was like he had money. 

Q. 30 or $40 was a lot to him? 

A. Not a lot of money, but he looked at it was enough 

for him to get by that day and probably unti l the next 

day. "I got money, 30 or $40," you know. 

I'm, "Yeah, okay. You got money." 

Page 4 of 7 
2015 Tex. App. LEXIS 8394, *8 

Q. He was kind of one of those guys that lived day to 

day? 

A Yeah. 

Officers found a total of 5.85 pounds, or 2653.56 grams, of 

marijuana during their search of the home according to 

Lauren Woolridge, a drug chemist with the Southwestern 

Institute of Forensic Sciences. Officer Wagner testified that 

the marijuana [*9] was a high-grade variety known as 

"kush," "hydro," or "popcorn weed," and that it is more 

expensive, stronger, and more pungent than "regular" 

marijuana. He testified that such a large amount of a 

high-grade marijuana would have given off a distinct odor. 

Given the strong smell, he believed someone living in the 

home would have been aware of the marijuana. Officer 

Wagner also testified that the house was "(p]retty small." 

Woolridge agreed that, at $20 a gram, the estimated value of 

the marijuana found in the house would have been 

$53,071.20. 

Detective Timothy Falk, a narcotics detective with the 

Dallas Police Department, testified that he obtained a search 

warrant for the two cell phones seized from the residence. 

He found text messages on both phones that seemed 

indicative of drug transactions. On the red phone, there were 

pictures of money and a gun similar to the one seized in this 

case. Detective Falk testified, however, that there were no 

text messages or photos on either phone that could be 

connected to appellant. 

The evidence showed appellant was present when the search 

was conducted. A portion of the 5.85 pounds of marijuana 

recovered from the property was stashed beneath an 

unfinished [* IO] stairway at the back of the house. Officer 

Foster testified that the bags of marijuana would have been 

visible to someone going up the stairs. More marijuana and 

the gun were found in a hidden compartment in the dining 

room. Officer Foster testified the house was "pretty small," 

and the marijuana was hidden in such a way as to be 

accessible only to one who exercised control over the house. 

Appellant admitted to law enforcement officers, and he 

testified at trial, that he was smoking marijuana on April 17, 

2012, when the officers arrived. Officer Foster testified that 

individuals wi ll sometimes attempt to minimize their guilt 

by admitti:ng to the possession of smaller amounts of drugs 

while denying any knowledge of larger quantities of drugs 

found at a location. Officer Foster also testified that, when 

he knocked on the door, appellant opened the door, walked 

onto the porch, and quickly shut the door behind him. 

Another officer observed an individual locking the door 

behind appellant and then picking up a bag and carrying it 

to the rear of the house. The bag was recovered during the 

search and marijuana was found inside. Officer Foster 

testified that he cou ld smell the odor of marijuana [* ll] 

emanating from the house. The evidence showed the 

marijuana found at the property was of a high-grade quality 

and that it gave off a strong, pungent odor that would have 

been difficult for the occupants of the house to ignore. 

Officers also found a large number of baggies and a scale, 

and two containers were found in the living room with 

inscriptions indicating they had been used for marijuana. 

The evidence found in the house suggested the marijuana 

was being broken down, packaged, and sold out of the 

house. Appellant told the officers he lived at the location 

and that the other two individuals who were with him were 

just visiting. He said he was renting the house from the 

"manager" that lived next door, but when officers knocked 

on the door to the next-door unit, it appeared to be 

unoccupied. A total of $975 in various denominations of 

U.S. currency was found during the search. Appellant, 

however, was unemployed at the time of his arrest, and 

when appellant's cousin, Kelly, was asked about appellant's 

financial situation, he responded, in part, that "there was no 

financial situation" and that appellant "really didn't have 

money." Other evidence showed that the large number of 

$20 [* 12] bills found by officers (totaling $700 out of the 

$975 recovered) was consistent with someone dealing drugs 

on a $20-a-gram level. Viewing the evidence in the light 

most favorable to the verdict, we conclude the evidence in 

this case is sufficient to link appellant to the marijuana. We 

overrule appellant's first issue. 

Possession of a Firearm by a F elo11 

In his second issue, appellant contends the evidence is 

insufficient to support the conviction for possession of a 

firearm by a felon. 

The indictment in 05-14-00834-CR alleged that on or about 

April 17, 2012, appellant intentionally and knowingly 

possessed a firearm, to wit: a handgun, and that the 

possession was before the fifth anniversary of his release 

from parole for a prior felony conviction. See TEX. P ENAL 

CooE ANN. § 46.04(a)(] J.HN4 3''Possession' means actual 

care, custody, control, or management." Id. § /.07(a)(39). 

As in cases involving the possession of a controlled 

substance, when an individual is charged with the unlawful 

3 Appellant stipulated to the underlying felony at the beginning of trial, so the only issue before us is whether the evidence is sufficient 

to support the possession element. 

Page 5 of 7 
2015 Tex. App. LEXIS 8394, *12 

possession of a firearm, the State must prove the accused (I) 

exercised care, custody, control, or management over the 

firearm, and (2) knew the object was a firearm. See Evans. 

202 S. W3d at 161; Poindexter. 153 S. W3d at 405. If the 

accused is not in exclusive possession of the area where 

[* 13) the contraband or firearm is found, the evidence must 

link the accused to the contraband or weapon. Evans. 202 

S. W3d at 162; Poindexter. 153 S. W 3d at 406. Regardless of 

whether the evidence used is direct or circumstantial, the 

State must establish that the accused's connection with the 

firearm was more than just fortuitous. Evans. 202 S. W 3d at 

161. As we noted earlier, mere presence at the location 

where the contraband is found is insufficient, by itself, to 

establish actual care, custody, or control of the contraband. 

Id. at 162. But when combined with other links, either direct 

or circumstantial, presence or proximity may be sufficient to 

establish that e lement beyond a reasonable doubt. See id. 

HNS There is no set formula to determine what links are 

sufficient and the number of links is not as important as the 

"logical force" or degree to which the factors, alone or in 

combination, tend to link the accused to the weapon. Id. 

Factors that may establish the link include (I) whether the 

contraband or weapon was in plain view or found on the 

accused; (2) the accused's proximity and accessibi lity to the 

weapon or contraband; (3) whether the accused owned or 

controlled the place where the contraband or weapon was 

found; (4) whether the accused made any incriminating 

(".'14) statements; (5) whether the accused tried to flee; and 

(6) whether the accused made furtive gestures. Id. at 162 

n.12; Poindexter, 153 S.W3d at 409-12. 

The jury in this case cou ld have reasonably concluded 

appellant's connection to the firearm was more than 

fortuitous. The firearm was found, along with some of the 

marijuana, in a hidden compartment in the dining room. 

Officer Wagner testified that a person walking through the 

dining room would not have known about the hidden 

compartment. Appellant testified that because the house was 

being remodeled and only one room was furnished, he was 

essentially living in one room while he stayed there. 

Appellant told the officers that whi le he lived at the 310 

Cumberland Street address, the other two individuals were 

just visiti ng. Although the gun and some of the marijuana 

were found in the hidden shelf compartment, Officer Foster 

testified that the marijuana seized from the house was a 

high-grade quality and had a strong, pungent odor that 

would have been apparent to anyone in the house. Appellant, 

in fact, expressed [* IS] fami liarity with the type and quality 

of the "kush" marijuana seized in this case, stating on 

cross-examination that he was familiar with it because he 

was a "pothead." Kelly testified that, about a week before 

the arrest, he went to the house and saw a firearm in the 

back of the house where the remodeling work was being 

done. The gun "was sitting on the counter" and "was out in 

the open." At the time he saw the firearm, the owner of the 

house, "Mr. D," was at the house and he and appellant were 

outside talking. Kelly had gone into the house looking for 

the bathroom and went in the wrong direction. He testified 

that after he saw the gun he went outside and told appellant 

and Mr. D, "Hey, somebody needs to go put that up." After 

reviewing the evidence in the light most favorable to the 

verdict, we conclude the evidence is sufficient for a rational 

jury to find beyond a reasonable doubt that appellant 

exercised care, custody, control, or management of the 

firearm. The jury was not required to believe appellant's 

testimony that he had no idea to whom the handgun 

belonged. See Evans. 202 S. W3d at 166. Accordingly, the 

evidence is sufficient to support the jury's verdict. We 

overrule appellant's second issue. [* 16) 

Use or Exhibition of a Deadly Weapon 

In his third issue, appellant argues the evidence is insufficient 

to support the finding in 05-14-00833-CR that he used or 

exhibited a deadly weapon during the commission of the 

possession of marijuana offense. 

HN6 Article 42. 12. section 3g(a)(2) of the Texas Code of 

Criminal Procedure permits the entry of a deadly weapon 

finding when it is shown that a defendant used or exhibited 

a deadly weapon, or he was a party to the offense and knew 

that a deadly weapon wou ld be used or exhibited. See TEX. 

CoDE CRIM. PRoc. ANN. art. 42. 12. § 3g(a)(2). In the context 

of a deadly weapon finding, the term "use" means any 

employment of a deadly weapon, even simple possession, if 

that possession faci litates the associated felony. Coleman v. 

State. 145 S. W3d 649. 652 (Tex. Crim. App. 2004); Patterson v. State. 769 S. W 2d 938. 941 (Tex. Crim. App. 1989). 

However, the term "exhibit" requires a weapon to be 

consciously shown, displayed or presented to be viewed. 

Coleman. 145 S. W3d at 652; Patterson. 769 S. W. 2d at 941. 

HN7 When reviewing the sufficiency of the evidence to 

support a deadly weapon finding, the issue is whether the 

weapon was found to have facilitated the defendant's 

possession and intended distribution of the drugs. See 

Coleman. 145 S. W3d at 655. The defendant's proximity to 

the gun at the time of the search is not dispositive. Id. at 

654. Likewise, ownership is not necessary to establish that 

a defendant used a deadly weapon in violation of article 

42. 12. section 3g. Smith v. State. 176 S. W3d 907, 919 (Tex. 

App.- Dallas 2005, pet. refd). The focus is [*l7] on the 

proximity of the guns to the drugs, not the proximity of the 

guns to the defendant. See Coleman. 145 S. W 3d at 654-55; 

Page 6 of 7 
2015 Tex. App. LEXIS 8394, *17 

see also Morerw v. State, 978 S. W.2d 285. 289 (Tex. 

App.- Fort Worth 1998. no pet.) (defendant "used" weapons 

found in container lying beside concealed cocaine to facilitate 

his possession of narcotics with intent to distribute). We 

must determine whether the cumulative effect of the factors 

cou ld have allowed a rational jury to determine that the 

defendant used the weapons to protect the drugs and the 

proceeds therefrom. Coleman. 145 S. W. 3d at 655. If we 

determine the State fai led to show a defendant used a deadly 

weapon in the commission of an offense, we may delete the 

deadly weapon finding. See Drichas v. State. 175 S. W. 3d 

795. 798 CTex. Crim. App. 2006). 

Officer Foster testified that they found the handgun hidden 

along with a quantity of the marijuana in the shelf 

compartment. A handgun is a deadly weapon per se. TEX. 

PENAL CovEANN. § 1.07(a){/7)(A). Evidence showed that the 

handgun, which had been reported stolen out of College 

Station, was loaded; it had eight rounds in the clip and one 

in the chamber. The gun was ready to be fired. As Officer 

Wagner noted," All you have to do is pull the trigger." Other 

evidence showed it is very common for people selling drugs 

to be armed in order to protect their drug supply. A rational 

trier of fact could have found [*IS) that appellant "used" the 

weapon to facilitate his possession and intended d istribution 

of the narcotics. See Coleman. 145 S. W.3d at 655. Therefore, 

the evidence in this case is sufficient for the jury to have 

concluded appellant used or exhibited a deadly weapon 

during the commission of the possession of marijuana 

offense. We overrule appellant's third issue. 

We affirm the trial court's judgment. 

Isl Lana Myers 

LANA MYERS 

JUSTICE 

Do Not Publish 

TEX. R. APP. P. 47 

J UDGMENT 

Based on the Court's opinion of this date, the judgment of 

the trial court is AFFIRMED. Judgment entered this 11th 

day of August, 2015. 

Page 7 of 7