Opinion issued September 24, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00186-CR

KENNY HUBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1145774

CONCURRING AND DISSENTING OPINION

Charged with possession of a firearm by a felon, appellant was acquitted. Charged with possession of the drugs found within inches of that same firearm, he was convicted. That a person can be convicted of possession of a controlled substance on such tenuous connections is disturbing, and our jurisprudence should not abide such a result.

The jury determined that appellant’s recent presence at the house in which a gun and drugs were found—a house that the evidence suggested was not his, but his brothers’—coupled with the presence of (1) a medical statement and two bank statements (all listing other addresses than where the gun and drugs were found), a 2002 Lamar College course certificate, and a birth certificate, found in the corner of a closet shelf in the vicinity of the gun and vial of drugs, and (2) a cell phone bill and wire transfer receipt found in other parts of the house (also listing other addresses), were sufficient “links” to find appellant guilty beyond a reasonable doubt of drug possession, but not the firearm possession.

I recognize that when the evidence at trial is viewed in the light most favorable to the verdict, and resolving all inferences in favor of the verdict, a jury could have found that there were sufficient links between appellant and the controlled substance to find that he knowingly possessed the PCP.

          However, viewing the evidence at trial in a neutral light, the record shows that:

(1)     there was no testimony that appellant actually resided in the house and he never admitted to living at that address;

(2)     there was testimony that appellant had quite recently lived elsewhere (with his girlfriend) and all documents found at the house with his name listed other addresses (his grandmother’s or his girlfriend’s);

(3)     there was evidence that his brothers were living in the house, and drugs and paraphernalia were found in a room in which personal items belonging to one of his brothers were found;

(4)     incriminating forensic evidence in the case was limited to a single fingerprint lifted from a vial of drugs in the kitchen, which print belonged to appellant’s brother, not appellant;

(5)     there was testimony that the car in which some of the PCP was found was registered to someone other than appellant, and there was no evidence that appellant ever actually used that car;

and, most significantly,

(6)     two other people were seen leaving the area of the residence between the time appellant left and the police executed the warrant, searched the house, and found the drugs and gun.  One was seen actually leaving the house, and the other was seen walking down the driveway, the latter being seen as late as 3:30 p.m., approximately two and one-half hours after appellant Hubert had driven away and had been arrested minutes thereafter.

In light of these facts, I would hold that evidence at trial demonstrating links between appellant and the drugs is so weak that the verdict is clearly wrong and manifestly unjust. 

That someone with access to that house possessed drugs and, possibly, was even dealing drugs, is not sufficient to convict appellant of such crimes. The evidence in the record linking appellant to the PCP is simply not enough to establish possession. The State proved no more than a mere probability or strong suspicion, if that, that appellant possessed the PCP.  “Proof amounting to only strong suspicion or mere probability will not suffice” to support a conviction for possession. See Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  Possession means more than merely “being where the action is.” Meeks v. State, 692 S.W.2d 504, 511 (Tex. Crim. App. 1985) (quoting Wilkes v. State, 572 S.W.2d 538, 540 (Tex. Crim. App. 1978)).

I, therefore, concur with the portion of the majority’s opinion holding that the evidence is legally sufficient, but dissent to the portion of the opinion holding that the evidence is factually sufficient.  I would hold that the evidence is factually insufficient to link appellant to the PCP, reverse appellant’s conviction, and remand this cause for a new trial.

                                                          Jim Sharp

                                                          Justice

Panel consists of Judges Bland, Sharp, and Taft.

Publish.  Tex. R. App. P. 47.4