IN THE
TENTH COURT OF APPEALS
No. 10-11-00022-CR
KIMLY RUSHA TERRELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2010-627-C2
MEMORANDUM OPINION
Kimly Rusha Terrell was convicted of possession with the intent to deliver a
controlled substance, cocaine, in an amount of one gram or more, but less than four
grams. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West 2010). She was
sentenced to twelve years in prison. Because the evidence is sufficient to support the
elements of possession and intent to deliver, and because the error, if any, regarding
prosecutorial misconduct was not preserved, the trial court’s judgment is affirmed.
BACKGROUND
While conducting surveillance of another person, an investigator with the Waco
Police Department noticed the person, and many others, frequent a particular residence.
Police conducted a no knock entry on the residence and located cocaine and other items
that indicated the cocaine was being sold from the residence. Terrell lived at the
residence and was home during the police entry.
SUFFICIENCY OF THE EVIDENCE
Terrell initially complains that the evidence is legally insufficient to support two
specific elements of the offense; that being, whether Terrell exercised care, custody, or
control of the cocaine seized and whether she intended to deliver the cocaine seized.1
As Terrell recognized, the standard enunciated in Jackson v. Virginia is now the
only standard a reviewing court applies in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010); see Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under
the Jackson standard, a reviewing court should not “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.” Blackman v. State,
No. PD-0109-10, 2011 Tex. Crim. App. LEXIS 497, *18 (quoting Jackson, 443 U.S. at 318-
1 This Court has tried for a long time to ensure appellants specify the elements of the offense which they
contend the evidence is insufficient to support. See e.g. Turner v. State, 4 S.W.3d 74, 80-81 (Tex. App.—
Waco 1999, no pet.) (“A brief asserting legal or factual insufficiency of the evidence is helpful when it
focuses our attention on the disputed issues, specifies each element of the crime or cause of action, and
specifies which element lacks evidentiary support. The brief should contain a discussion of the relevant
evidence and why that evidence is not sufficient.”). We commend Terrell’s counsel for doing in this
appeal what we have asked to be done. We also are disappointed with the State’s response which
combined Terrell’s separate elements into one argument, lapsing into a routine with which we have tried
to dispense.
Terrell v. State Page 2
19) (emphasis in original). Rather, "the relevant question is whether, after viewing 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, 443
U.S. at 319 (emphasis in original).
Each fact need not point directly and independently to the guilt of a defendant,
as long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Reconciliation of conflicts and contradictions in the evidence is within the province of
the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury is entitled
to judge the credibility of witnesses, and can choose to believe all, some, or none of the
testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.
App. 1991). Further, the prosecution has no affirmative duty to "rule out every
hypothesis except that of guilt." Blackman, 2011 Tex. Crim. App. LEXIS 497 at *19
(quoting Wright v. West, 505 U.S. 277, 296, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992)).
Possession
Terrell was charged with the offense of possession of cocaine with the intent to
deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West 2010). A person
commits unlawful possession of a controlled substance when (1) the person (requires
proof of identity) (2) exercises control, management, or care over the substance, and (3)
knows the matter possessed is contraband. See Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005). Whether this evidence is direct or circumstantial, "it must
establish, to the requisite level of confidence, that the accused's connection with the
Terrell v. State Page 3
drug was more than just fortuitous. Id. at 405-406. In her first issue, Terrell contends
the evidence is insufficient to support the possession element because, she argues, she
did not exercise care, custody, or control of the cocaine found. She does not contest
whether she knew the substance was contraband.
Facts
Pursuant to a search warrant, a no-knock entry was made in the early morning
on a house in which Terrell lived. Terrell was found in a bed in one of the bedrooms of
the house and secured until the search was completed. A bill and a receipt located in
the bedroom where Terrell was found indicated that Terrell was the resident of the
house. Mail recovered from trash was in Terrell’s name and listed the address of the
house searched. The utilities of the house were also in her name.
A scale with a razor blade that field tested positive for cocaine was found in
plain view on a DVD stand in the living room of the house. Immediately beyond this
stand was the bedroom in which Terrell was located. At the end of the bed where
Terrell was found was a table with a tray of loose marijuana. On the dresser2 next to the
bed where Terrell was laying, officers located a digital scale which tested positive for
cocaine. Fingernail polish was located next to the scale. In the open first drawer of the
dresser, officers located a baggie of marijuana and a purse with about $300 cash stuffed
in it. A box of baggies was seized from Terrell’s kitchen table.
A connecting bathroom was about 4 feet from the bed in which Terrell was
laying. Eric Brooks, a person who was living with Terrell, had barricaded himself in the
2The State referred to the piece of furniture as a nightstand while the witnesses referred to it as a dresser.
Terrell v. State Page 4
bathroom and apparently ate some cocaine while in the bathroom. Once officers gained
entry to the bathroom and secured Brooks, they located cocaine on the top shelf of a
cabinet in the bathroom. Officers then located on the top shelf of open shelving in the
bathroom an envelope containing $1,000 and a withdrawal slip from a bank.
Application
Although Terrell was not in the room where the cocaine was located, there was
evidence that Terrell’s connection to the cocaine was more than just fortuitous. The bills
and utilities of the residence were in her name. A scale and a razor blade which tested
positive for cocaine were on a stand just before entering the bedroom where she was
located. Another scale which tested positive for cocaine was on a dresser right next to
the bed where she was located. Fingernail polish was on the dresser next to the scale,
leading to an inference that the dresser was Terrell’s dresser. Accordingly, the evidence
was sufficient to support the element of possession. Terrell’s first issue is overruled.
Intent to Deliver
Terrell also contends the evidence is insufficient to prove that she had the intent
to deliver cocaine. Intent to deliver may be established by expert testimony, such as
testimony from experienced law enforcement, and circumstantial evidence, such as
evidence of an accused's possession of the contraband. Moreno v. State, 195 S.W.3d 321,
325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).
Additional Facts
Some of the facts that support the element of possession also support the element
of intent to deliver. Those facts do not bear repeating here. Additional facts supporting
Terrell v. State Page 5
the intent to deliver element are as follows.
Investigator John Allovio testified that based on his training and experience, he
believed that the cocaine was being sold from the residence. He based this belief on
many items found in the residence and on the amount of foot traffic and vehicle traffic
at the house. Allovio observed individuals enter the house, remain for about five
minutes, and leave. Allovio testified that typically, cocaine was sold in ½ to one gram
amounts. The cocaine seized was in two separate amounts, 1.10 grams and 1.36 grams.
Some of the cocaine seized was crack cocaine.
Allovio stated that there was no drug paraphernalia for smoking or otherwise
ingesting crack cocaine found at the residence which would indicate that the cocaine
was for sale and not for personal use. He explained that dealers of cocaine do not use it
because a user would smoke all the cocaine and not make any profit. He further
explained that razor blades, like the one found on the scale in the living room, are used
to cut the cocaine into smaller rocks depending on how much money someone wanted
to spend. He explained that scales are used because the sale of cocaine is based on
weight.
Allovio also stated that the money stuffed into the purse by the bed was
consistent with selling narcotics, explaining that money is simply stuffed somewhere
when a sale is made. He further explained that large amounts of cash are also
consistent with drug dealing. Investigator David Starr additionally stated that in his
experience, people who buy and sell narcotics typically deal in cash and that the money
found in the bathroom and in the purse were consistent with drug dealing.
Terrell v. State Page 6
Another officer testified that the use of plastic baggies was also consistent with
drug dealing. Further, during his investigation, Allovio found no evidence of gainful
employment by either Terrell or Brooks.
On cross examination, Allovio and other witnesses agreed that some of the items
located, such as the baggies and the large amount of cash, were not always indicators of
drug dealing and that the money stuffed into the purse could be consistent with tip
money received from a job. Terrell’s cousin, Latravia Drake, testified that Terrell was
working as a waitress. However, Drake did not recall telling investigators previously
that Terrell was not working at the time of the offense and did not recall having no
explanation for investigators of how Terrell was paying her bills.
Application
There is little doubt that the evidence established the cocaine was possessed with
the intent to deliver. The most damning evidence of this element is the presence of not
one, but two, sets of scales with cocaine residue on them. The logical inference is that it
is a distributor that is most interested in the weight of what is being sold, not the user of
a single rock for personal consumption. But the question is whether Terrell was the one
distributing the cocaine. The jury had to evaluate all the evidence.
We have already held that the evidence that Terrell possessed the cocaine is
sufficient. As stated previously, some of the evidence of possession also tends to
support the element of intent to deliver. The cumulative effect of the evidence is
compelling. In particular, we note that the money ($300) was found stuffed into a purse
which was sticking out of an open drawer of a dresser where the scale with cocaine
Terrell v. State Page 7
residue on it was located which, in turn, was next to a bottle of fingernail polish. A
reasonable inference would be that if this was money from the sale of cocaine, it was
sold by a woman. Terrell’s cousin, Latravia Drake, said Terrell was working as a
waitress, but it was reasonable for the jury to disbelieve this testimony. Evidence
showed that investigators could not determine that Terrell or Brooks were gainfully
employed. It was then also reasonable for the jury to disbelieve Terrell’s theory that the
money in the purse was from tips made as a waitress.
Further, the evidence showed that some of the cocaine was consumed by Brooks,
but he did not dispose of or consume the cocaine found in the cabinet. Since the
testimony was that typically users use and distributors do not, a logical inference is that
Terrell had hidden the cocaine from Brooks and he simply did not know where it was.
Moreover, Terrell was charged under the law of parties. The evidence amply supports
the conclusion that if Brooks was the distributor, Terrell was not only in possession of
the contraband, but also assisted Brooks in the distribution by supplying the location
from which it was being sold.
Accordingly, the evidence was sufficient to prove Terrell had the intent to deliver
the cocaine. Her second issue is overruled.
PROSECUTORIAL MISCONDUCT
In her third issue, Terrell alleges that the State engaged in prosecutorial
misconduct which violated her constitutional rights to present a defense. The facts of
the alleged misconduct are somewhat convoluted and relate to a plea agreement with
Brooks. We need not elaborate on the details of the conduct due to the disposition of
Terrell v. State Page 8
the issue.
A timely objection regarding prosecutorial misconduct is necessary to preserve
error for purposes of appeal. Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App.
2010); Watkins v. State, 333 S.W.3d 771 (Tex. App.—Waco 2010, pet. ref’d). There are no
exceptions to this rule. See Estrada, 313 S.W.3d at 303 (where defendant attempted to
use an exception to the objection requirement announced in a jury argument case as an
exception to the objection requirement in a prosecutorial misconduct case, the Court of
Criminal Appeals stated, “We overruled the exception discussed in Willis more than ten
years ago,” and overruled defendant’s issue). Terrell did not object to the alleged
misconduct by the prosecutor.
Accordingly, error, if any, is not preserved, and Terrell’s third issue is overruled.
CONCLUSION
Having overruled each of Terrell’s issues on appeal, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 20, 2011
Do not publish
[CR25]
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