IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 12, 2015

STATE OF TENNESSEE v. EMMANUEL BIBB HOUSTON

Appeal from the Circuit Court for Bedford County

No. 17455 F. Lee Russell, Judge

No. M2014-00202-CCA-R3-CD – Filed December 11, 2015

Following a jury trial, the Defendant-Appellant, Emmanuel Bibb Houston, was convicted

as charged in count 1 of possession of a Schedule VI drug with intent to sell, a Class E 

felony; in count 2 of possession of a Schedule VI drug with intent to deliver, a Class E 

felony; in count 3 of possession of a firearm with the intent to go armed during the 

commission of or attempt to commit a dangerous felony, a Class D felony; and in count 4 

of possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-

417(a), -1324(a), -425(a)(1). The trial court merged count 2 with count 1 and imposed an 

effective sentence of six years. Houston‟s sole issue on appeal is that the evidence is 

insufficient to sustain his felony convictions. Upon our review, we affirm the judgments 

of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the Defendant-Appellant, 

Emmanuel Bibb Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant 

Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles 

and Richard A. Cawley, Assistant District Attorneys General, for the Appellee, State of 

Tennessee.

OPINION

Initially, we must address the State‟s claim that this appeal should be dismissed 

because Houston did not file a timely notice of appeal within thirty days of the trial 

court‟s order denying his motion for new trial. However, a careful review of the record 
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shows that Houston sought and obtained a waiver of the thirty-day deadline to file the

notice of appeal but did not file his notice of appeal within the fifteen-day deadline set by 

this court in its order. In order to determine whether the interest of justice mandates 

waiver of this fifteen-day deadline, we must briefly summarize the procedural history of 

this case. 

On September 20, 2013, the trial court sentenced Houston and entered judgments 

of conviction. That same day, Houston orally moved for a new trial, and the trial court,

after hearing arguments, denied the motion for new trial and entered an order to that 

effect on September 24, 2013. The order denying the motion for new trial appointed 

defense counsel to represent Houston on appeal; ordered the court reporter to transcribe 

the trial, sentencing hearing, and motion for new trial hearing within ninety days of the 

notice of appeal; and ordered defense counsel to notify the court reporter of Houston‟s

appeal by mailing the court reporter a copy of the notice of appeal after it had been filed.

On October 1, 2013, Houston filed a motion for new trial that reduced to writing the 

arguments he had made at the motion for new trial hearing. 

On January 31, 2014, Houston, through defense counsel, filed a Motion to Allow 

Late Filing of Notice of Appeal, stating only that he did not timely file the notice of 

appeal and that the Attorney General‟s office had no objection to the motion.1 On 

February 21, 2014, the Tennessee Court of Criminal Appeals entered an order waiving 

the thirty-day deadline for filing the notice of appeal and giving Houston fifteen days 

from the date of the order to file a notice of appeal in the trial court. The record shows 

that while two notice of appeal documents were filed in the trial court, they were not filed 

until July 3, 2014, approximately four months after the deadline set by this court. The 

first of these notice of appeal documents was filed on July 3, 2014, although it was dated

January 29, 2014, and the certificate of service showed that the document had been

forwarded to the State on January 29, 2014. The second notice of appeal document, 

which varied in form from the first, was also filed in the trial court on July 3, 2014, but 

was not stamped “Received” by the Clerk of the Appellate Courts until July 18, 2014. 

On December 1, 2014, the Clerk of the Appellate Courts sent a notice to the 

Bedford County Circuit Court Clerk stating that the time for filing the record in 

Houston‟s case had expired and requesting that the Clerk file the record or notify the 

Tennessee Court of Criminal Appeals of the status of this appeal within twenty days of 

the date of the notice. On December 8, 2014, the Bedford County Circuit Court Clerk

forwarded a letter to the Clerk of the Appellate Courts requesting additional time to file 

the record on appeal in Houston‟s case because of a “[c]lerical error in filing notice of 

 

1 On February 6, 2014, the trial court entered an order requiring defense counsel to “secure the 

services of a court reporter to transcribe the Trial, Sentencing hearing and hearing upon Defendant‟s 

Motion for a New Trial that took place in Bedford County Circuit Court[.]”
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appeal[.]” On December 9, 2014, the Tennessee Court of Criminal Appeals entered an 

order granting the clerk thirty days from the date of the order to transmit the record on 

appeal. 

On January 2, 2015, the Bedford County Circuit Court Clerk forwarded a letter to 

the Clerk of the Appellate Courts, stating that after talking with defense counsel and the 

court reporter, she learned that the order for transcript had not been filed with the court 

reporter and that the court reporter would need an additional sixty days to complete the 

trial transcript because of a heavy caseload. On January 7, 2015, Houston filed a motion 

asking this court to allow the late filing of Appellant‟s Brief because the record had not 

been filed and asking for an additional sixty days in order to complete the filing of this 

record. In this motion, Houston asserted that “[t]he transcript of the trial has not been 

completed as a more specific Order from the court was necessary, and a change in the 

Clerk‟s office delayed the discovery of this issue.” On January 13, 2015, the Tennessee 

Court of Criminal Appeals entered an order wherein it noted that the notice of appeal had 

been filed on July 3, 2014, and gave defense counsel until February 27, 2015, to file the 

transcript of evidence with the trial court clerk. On January 16, 2015, the trial court 

entered an order requiring the court reporter to transcribe all trial proceedings, sentencing 

proceedings, and proceedings related to the motion for new trial so that they might be 

made a part of the record incident to Houston‟s appeal. 

Tennessee Rule of Appellate Procedure 4(a) states that “the notice of appeal 

required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 

days after the date of entry of the judgment appealed from . . . .” Upon the filing of a 

motion for new trial, “the time for appeal for all parties shall run from the entry of the 

order denying a new trial[.]” Tenn. R. App. P. 4(c). However, this rule also states that 

“in all criminal cases the „notice of appeal‟ document is not jurisdictional and the filing 

of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “„In 

determining whether waiver is appropriate, this court will consider the nature of the 

issues presented for review, the reasons for and the length of the delay in seeking relief, 

and any other relevant factors presented in the particular case.‟” State v. Rockwell, 280 

S.W.3d 212, 214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No. 

M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27, 

2005)). “Waiver is not automatic and should only occur when „the interest of justice‟ 

mandates waiver.” Id. (citing Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 

1996 WL 63950, at *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996)).

Here, Houston filed a notice of appeal on July 3, 2014, approximately four months 

after the deadline set by this court in the order allowing him to file a late notice of appeal. 

As we previously noted, this court has the authority to waive “in the interest of justice” 

the timely filing of the Houston‟s notice of appeal. See Tenn. R. App. P. 4(a). Although 
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Houston sought and obtained a waiver of the thirty-day deadline to file a notice of appeal, 

curiously, he has not explained why he did not file his notice of appeal within the fifteenday deadline set by this court in its order or how waiving this deadline serves the interest 

of justice. Nevertheless, because it is not entirely clear from the record whether the 

delayed filing was the result of clerical error, we will waive the timely filing of the notice 

of appeal in the interest of justice.

 

The evidence adduced at Houston‟s June 3, 2013 trial was as follows: Assistant 

Director Timothy Joe Miller and Lieutenant Shane Daugherty with the 17th Judicial Drug 

Task Force testified that Houston and lot 99, Bridlewood Trailer Park in Shelbyville, 

Tennessee, his girlfriend‟s trailer-home, had been under investigation for over a year 

prior to the instant offense. Assistant Director Miller explained that he knew Houston

prior to the instant offense and that Houston knew him in his capacity as a law 

enforcement officer. Lieutenant Daugherty knew Houston prior to the instant offense 

because they played on the same basketball courts together. Given their prior 

relationship, the officers explained that their encounter with Houston on March 1, 2011, 

the day of the offense, was cordial. On the day of the offense, the officers had the trailerhome under surveillance for illegal activity. They conducted a traffic stop on an 

individual who had just left the trailer-home. Assistant Director Miller recovered a $20 

bag of marijuana in the car. The driver told him that he purchased the drugs at the trailerhome from “E,” which was Houston‟s nickname. Shortly thereafter, they conducted a 

knock and talk at the trailer-home, where they encountered Houston. They were dressed 

in plain clothes, had badges hanging around their necks, guns displayed, and flashlights 

in hand. The interior door was glass and open. The officers could see inside the trailerhome and announced their presence. Houston, his girlfriend, and another individual were 

present in the trailer-home. Houston told the officers to “Come in.” 

Upon entry, the officers were overwhelmed by the smell of burnt marijuana. They 

asked Houston if they could speak with him privately. Houston led them down a hallway 

toward the rear of the trailer-home and into a bedroom. They encountered Houston‟s 

girlfriend in the hallway, who followed them to the bedroom. Assistant Director Miller

explained that they were investigating marijuana distribution and asked for their 

cooperation and consent to search. At this point, Houston told his girlfriend to “[j]ust 

hand them that stuff.” She then reached into the top drawer of a nightstand and removed 

several bags of marijuana and a set of digital scales. Houston was advised of his Miranda

rights, which he said he understood and waived. Before his girlfriend left the room, 

Houston said, “She don‟t [sic] have anything to do with this. This is my stuff.” Houston

was asked about additional drugs or guns in the trailer-home. In response, he pulled out 

more marijuana from a men‟s basketball shoe underneath the bed and identified the 

location of a gun. The officers retrieved a .40 caliber semi-automatic pistol loaded with a 
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magazine with six rounds of ammunition from a computer bag approximately six feet 

from the nightstand where the drugs were found. 

 The bedroom where the gun and drugs were found had men‟s basketball shoes 

underneath the bed and men‟s clothing strewn about. Lieutenant Daugherty said there 

was “definitely a male living there or staying in the room on a frequent occasion.” They 

agreed that Houston‟s girlfriend paid the rent for the trailer-home and that none of the 

clothes in the bedroom were identified as belonging to Houston. They further explained 

that Houston was cooperative the entire encounter. In regard to whether the drugs or gun 

belonged to anyone else in the trailer-home, Assistant Director Miller said that Houston

“was straight up about who it belonged to and the fact that he didn‟t want anyone else to 

have to . . . be in any trouble about it.” Houston “took responsibility for everything 

seized from the home.” 

The officers characterized Houston as a street-level drug dealer due to the number 

of people he would deal with and the small amount of drugs sold. Assistant Director 

Miller described his job as “climbing the ladder” and asked Houston to work with him in 

targeting his supplier in the drug trade. Houston explained that he would regularly go to 

Murfreesboro, Tennessee, meet with another male whom he only knew as “Devin,” and 

purchase approximately a quarter pound of marijuana. He would return to Bedford 

County and break the marijuana down into smaller quantities for resale “to make ends 

meet.” The officers gave Houston the opportunity to participate in a controlled buy, for 

which he would be given “consideration.” If Houston assisted the officers, then they

would pass that information along to the District Attorney‟s Office. Houston was 

undecided whether he wanted to participate in a controlled buy at the time, and the 

officers gave him two weeks to consider it. Although Houston initiated several follow-up 

telephone conversations, he ultimately “fell off conversations” with Assistant Director 

Miller. 

A forensic scientist with the Tennessee Bureau of Investigation conducted testing 

on five of the sixteen bags of a leafy substance recovered in connection with this case. 

She confirmed that the substance was marijuana and that the total cumulative weight was

16.1 grams. The remaining eleven bags weighed 45.3 grams and visually appeared to be 

marijuana.

The jury convicted Houston of possession of marijuana in an amount weighing not 

less than one-half ounce nor more than ten pounds for resale and delivery and possession 

of a firearm with the intent to go armed during the commission of a dangerous felony. 

After merging the drug convictions, the trial court sentenced Houston to two years‟ 

incarceration for possession of marijuana for resale and four years‟ incarceration for the 
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possession of a firearm during the commission of a dangerous felony, to be served 

consecutively.

2

 

ANALYSIS

 

The sole issue raised by Houston with respect to the sufficiency of his drug and 

firearm related convictions is whether the State adequately proved that he possessed the 

contraband.3 Based on the cases cited in his brief, he argues that possession was not

established because (1) there were other people present where the drugs were found, (2) 

he was not in the same room as the drugs or the firearm when initially approached by law 

enforcement, (3) that he was not the owner of the premises where the drugs and firearm 

were found, and (4) no evidence of his personal property was found in the trailer. In 

response, the State points out that Houston claimed responsibility for the drugs, admitted 

buying and selling the drugs to make extra money, and was in close proximity to the 

drugs and firearm at the time of the search. We agree with the State.

“Because a verdict of guilt removes the presumption of innocence and raises a 

presumption of guilt, the criminal defendant bears the burden on appeal of showing that 

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279 

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 

1992)). When this court evaluates the sufficiency of the evidence on appeal, the State is 

entitled to the strongest legitimate view of the evidence and all reasonable inferences that 

may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) 

(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant 

challenges the sufficiency of the evidence, the standard of review applied by this court is 

“whether „any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Similarly, Rule 13(e) of the 

Tennessee Rules of Appellate Procedure states, “Findings of guilt in criminal actions 

whether by the trial court or jury shall be set aside if the evidence is insufficient to 

support the finding by the trier of fact of guilt beyond a reasonable doubt.” 

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of 

review for sufficiency of the evidence “„is the same whether the conviction is based upon 

direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) 

 

2

Pursuant to Tenn. Code Annotated section 39-17-1324(e), the trial court ordered the first three 

years of Houston‟s firearm conviction to be served at 100 percent less allowable credits. 

3 We have combined issues one and two of Houston‟s brief for clarity.
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(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of 

fact must evaluate the credibility of the witnesses, determine the weight given to 

witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 

S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. 

App. 1978)). Moreover, the jury determines the weight to be given to circumstantial 

evidence and the inferences to be drawn from this evidence, and the extent to which the 

circumstances are consistent with guilt and inconsistent with innocence are questions 

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 

646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court 

shall not substitute its inferences for those drawn by the trier of fact. Id.

In order to sustain the drug convictions in this case, the State was required to 

prove that Houston knowingly sold or possessed marijuana in an amount less than one 

half ounce but not more than ten pounds. T.C.A. § 39-17-417(a). To sustain the firearm 

conviction, the State was required to prove that Houston “possess[ed] a firearm with the 

intent to go armed during the commission of or attempt to commit a dangerous felony.” 

Id. § 39-17-1324(a). This offense is comprised of three separate elements: (1) that the 

defendant possessed a firearm; (2) that the possession was with the “intent to go armed”; 

and (3) that the first two elements occurred during the commission or attempted 

commission of a “dangerous felony.” State v. Fayne, 451 S.W.3d 362, 369 (Tenn. 2014).

 

In Tennessee, possession may be either actual or constructive. State v. Shaw, 37 

S.W.3d 900, 903 (Tenn. 2001). A person constructively possesses a controlled substance 

when he or she has “the power and intention at a given time to exercise dominion and 

control over [the contraband] either directly or through others.” Id. at 903 (quoting State 

v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). Said differently, 

constructive possession is the “ability to reduce an object to actual possession.” State v. 

Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). However, “[t]he mere presence 

of a person in an area where drugs are discovered is not, alone, sufficient.” State v. 

Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000) (citing Cooper, 736 S.W.2d at 129). 

“Likewise, mere association with a person who does in fact control the drugs or property 

where the drugs are discovered is insufficient to support a finding that the person 

possessed the drugs.” Cooper, 736 S.W.2d at 129.

Viewed in the light most favorable to the State, the record shows that Houston and 

his girlfriend‟s trailer-home were under surveillance for over a year prior to the instant 

offense. On the date of the offense, he sold a $20 bag of marijuana to an individual while 

his girlfriend‟s trailer-home was under surveillance by law enforcement. The individual 

confirmed that he purchased the marijuana from Houston. Officers approached the 

trailer-home, and Houston told them to come in. When asked to speak privately, Houston

led them to a back bedroom. The officers told Houston they were investigating 
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marijuana distribution, and Houston directed his girlfriend to give them “that stuff.” She 

then gave the officers several bags of marijuana and digital scales. Houston later 

produced additional amounts of marijuana and identified the location of a gun, which was 

in the same room only a short distance away. Houston twice admitted that the contraband 

recovered from the trailer- home was his. There were men‟s basketball shoes and clothes 

throughout the room. He further admitted that he was a low-level drug dealer. He told 

officers that he would regularly travel to Murfreesboro to purchase marijuana, and upon 

returning to Shelbyville, he would break it down into smaller amounts for resale to make 

extra money. He entertained the idea of cooperating with law enforcement to target other 

drug dealers, but failed to follow through. There is no question that Houston was in 

constructive possession of the marijuana and gun in this case. Accordingly, the evidence 

presented is more than sufficient for a reasonable juror to conclude that Houston was in 

constructive possession of the marijuana and gun recovered from the trailer-home. He is 

not entitled to relief. 

CONCLUSION

Upon our review, we affirm the judgments of the trial court.

_________________________________ 

CAMILLE R. McMULLEN, JUDGE