Affirm; Opinion Filed June 16, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01307-CR
JOHN FRANCIS KENNEDY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 069725
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
A jury convicted John Francis Kennedy of possessing between four and two
hundred grams of methamphetamine with intent to deliver. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(a), (d). On appeal, Kennedy argues there is legally
insufficient evidence that he possessed methamphetamine. He also argues that he
received ineffective assistance of counsel. We affirm the trial court’s judgment.
I. Background
Sergeant Shane Kumler of the Denison Police Department received reports
from some of his confidential informants that Kennedy was selling heroin in
Grayson County. Kumler asked one of his informants, Reba McKee, to find out
where Kennedy lived. McKee contacted Kennedy via social media, and Kennedy
provided McKee with his phone number. After a telephone conversation in which
McKee told Kennedy that she was looking for heroin, Kennedy agreed to sell heroin
to her. Kennedy provided McKee with an address—612 East Murray Street,
Denison, Texas.
On August 14, 2018, Kumler gave McKee money to purchase heroin from
Kennedy. He also gave her a cell phone that operated as a recording device. The cell
phone transmitted directly to Kumler and downloaded the recordings to a computer
so the police could watch the video and hear the audio of the transaction. Another
detective drove McKee to a location close to the address provided by Kennedy.
McKee walked to the address, met and talked to Kennedy, conducted the transaction,
and walked back to the detective’s vehicle. Kumler retrieved the narcotics1 and the
recording device from McKee. After reviewing the video of the transaction, Kumler
obtained a search warrant for the residence.
On August 16, 2018, Kumler and a team of narcotics investigators and patrol
officers arrived at Kennedy’s house to execute the search warrant. Finding the front
door unlocked, they entered the house and detained two individuals inside the
1
Although Kumler testified that the black tar-like substance his informant purchased from Kennedy
was heroin, he conceded that the substance had not been lab tested. The court allowed the evidence to be
admitted with the understanding that the jury would not take the sergeant’s word that the substance was
heroin.
–2–
house—Kennedy and a white female.2 A third individual, a white male,3 was in the
back yard. After providing Kennedy with a copy of the search warrant and a Miranda
warning, the team searched the house. On a table in the living room, the police found
two small plastic bags of a tar-like substance that field-tested positive for the
presence of heroin. On a shelf in the kitchen, they found three plastic bags of a
crystal-like substance that field-tested positive for the presence of methamphetamine
and had an approximate weight of seventeen grams. They also found two plastic
bags of marijuana, digital scales, numerous baggies, pipes, and other drug
paraphernalia. On another kitchen shelf, they found a wooden box containing
miscellaneous pills and another plastic bag with a crystal-like substance that field-
tested positive for methamphetamine and had an approximate weight of seven
grams. When the police entered the house, Kennedy was holding one cell phone and
had a second cell phone in his pocket. The police found a third cell phone in the
living room. Kennedy had $759 in cash in the front pocket of his pants.
The substances found in Kennedy’s house were transported to the Department
of Public Safety (DPS) crime lab in Garland, Texas. Daniel Hauser, a DPS forensic
scientist, examined the various substances submitted, although, in accordance with
2
The white female was not identified at trial.
3
The police determined that the white male in the backyard was the owner of the house who rented
the house to Kennedy. He was not detained by the police.
–3–
the laboratory’s policy, he performed a confirmation analysis of only one substance.4
Hauser described the procedures utilized by the laboratory to identify and maintain
chain-of-custody for evidence being tested. Hauser testified that he analyzed the
crystal-like substance and concluded that the substance, weighing 6.81 grams,
contained methamphetamine.
Kennedy was charged with one count of possession with intent to deliver a
controlled substance of four grams or more but less than 200 grams of
methamphetamine. The case proceeded to trial where a jury found him guilty as
charged. Kennedy chose to have the jury assess his punishment. He pled not true to
the three enhancement paragraphs in the indictment, which alleged two prior felony
convictions for drug-possession offenses and a prior felony conviction for driving
while intoxicated. After finding the enhancement paragraphs true, the jury assessed
punishment at confinement for life in the Texas Department of Criminal Justice.
Kennedy filed a motion for new trial, arguing the verdict was contrary to the law and
the evidence. After his motion was overruled by operation of law, Kennedy filed a
timely notice of appeal.
II. Discussion
Kennedy presents two issues for our review. First, he contends that the
evidence is legally insufficient to support his conviction because he was not in
4
Hauser explained that when multiple substances are submitted for testing, the lab does not analyze
every substance. For efficiency purposes, the lab determines which substance to completely analyze based
on the amount and the level of penalty that can be charged for the offense of possessing that substance.
–4–
exclusive possession of the house where the controlled substance was found. In his
second issue, he contends that he received ineffective assistance of counsel because
his trial counsel conceded his guilt during closing argument.
A. Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we consider the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 560 S.W.3d 224,
226 (Tex. Crim. App. 2018). We defer to the trier of fact to “fairly resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App.
2017).
Kennedy was charged with possession with intent to deliver more than four
grams of methamphetamine. HEALTH & SAFETY § 481.115(a), (d). To prove the
requisite intent to possess, the State was required to prove that Kennedy: (i)
exercised control, management, or care over the substance in question and (ii) knew
that the substance was contraband. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim.
App. 2016). Regardless of whether this evidence is direct or circumstantial, it must
establish that a defendant’s connection to the contraband was more than fortuitous.
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). Thus, mere
presence at the location where drugs are found is insufficient, by itself, to establish
–5–
the requisite degree of control to support a conviction. Evans v. State, 202 S.W.3d
158, 162 (Tex. Crim. App. 2006). That said, possession need not be exclusive. Henry
v. State, 409 S.W.3d 37, 42 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Where,
as here, the defendant was not in exclusive possession of the place where the
substance was found, there must be additional independent facts and circumstances
that link him to the contraband. Tate, 500 S.W.3d at 413–14.
The following is a non-exclusive list of possible “affirmative links” that Texas
courts have recognized as sufficient, either singly or in combination, to establish a
defendant’s possession of contraband:
(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether the
defendant made incriminating statements when arrested; (7) whether
the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether
other contraband or drug paraphernalia were present; (11) whether the
defendant 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) whether the defendant was found with a large amount of
cash; and (14) whether the conduct of the defendant indicated a
consciousness of guilt.
Evans, 202 S.W.3d at 162 n.12. Intent to deliver5 may be proved by circumstantial
evidence, such as the quantity of drugs possessed, the manner of packaging, whether
5
“Deliver” means to transfer, actually or constructively, to another a controlled substance, including
an offer to sell a controlled substance. HEALTH & SAFETY § 481.002(8).
–6–
the defendant possessed a large amount of cash, evidence of drug transactions, and
the nature of the location where the defendant was arrested. Taylor v. State, 106
S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Intent to deliver is a question
of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct
of the defendant. Id.
On appeal, Kennedy argues that the evidence does not rise to the requisite
level of confidence that his connection with the contraband was more than just
fortuitous. He points out that he was not the only person in the house when the police
arrived. He contends there is no evidence that he lived at the residence; he argues
that the evidence only shows that he happened to be at the residence on two
occasions. He contends that evidence of the sale of heroin two days prior to the
execution of the search warrant does not connect him to the methamphetamine found
during the search. When the police entered the house, Kennedy was in a bedroom.
He contends there is no evidence that he knew there was methamphetamine in the
kitchen or that he had ever been in the kitchen.
Even in the absence of direct evidence, we must view the circumstantial
evidence in a light most favorable to the verdict, and defer to the jury’s responsibility
to draw reasonable inferences from the evidence. Villa, 514 S.W.3d at 232. Although
the factors listed in Evans guide our analysis, no single factor is dispositive because
our ultimate inquiry is whether the jury was rationally justified in finding Kennedy
guilty based on the combined and cumulative force of the evidence and reasonable
–7–
inferences therefrom. See Tate, 500 S.W.3d at 414. In this case, Sergeant Kumler
testified that Kennedy was inside the house and was present when the search was
conducted. He did not attempt to flee. The owner of the house told police that
Kennedy was leasing the house; thus, Kennedy had the right to possess the place
where the drugs were found. Kumler testified that McKee purchased heroin from
Kennedy at that house. McKee testified at trial that she went to that house and
purchased heroin from Kennedy. In addition, the jury viewed the video that depicted
McKee going to the house and purchasing heroin from Kennedy.
During the police search of Kennedy’s house, the contraband was either in
plain sight or easily accessible. Police found two small plastic bags of a tar-like
substance that field-tested positive for the presence of heroin on a table in the living
room. On shelves in the kitchen, police found three bags of a crystal-like substance
that field-tested positive for the presence of methamphetamine, two plastic bags of
marijuana, digital scales, numerous baggies, pipes, and other drug paraphernalia.
They also found a wooden box containing miscellaneous pills and another plastic
bag with a crystal-like substance that field-tested positive for methamphetamine.
The police found several cell phones and discovered that Kennedy had $759 in cash
in his pocket.
We conclude there is evidence showing an affirmative link between Kennedy
and the methamphetamine found in the kitchen. A jury could have rationally inferred
from the evidence that Kennedy lived in the house, and that he exercised actual care,
–8–
custody, control, or management over the house and its contents, including the
methamphetamine. See id. In addition, considering the amount of methamphetamine
found, the baggies, the digital scales, the amount of cash in appellant’s pocket, and
the testimony that Kennedy sold heroin two days earlier, a rational jury could have
inferred that Kennedy intended to sell the methamphetamine in his possession. See
Taylor, 106 S.W.3d at 831. We conclude the evidence is legally sufficient to support
the jury’s verdict. We overrule Kennedy’s first issue.
B. Ineffective Assistance of Counsel
In his second issue, Kennedy asserts that his trial counsel conceded his guilt
during closing argument, thus depriving him of effective assistance of counsel at
trial. Kennedy was entitled to reasonably effective assistance of counsel. See U.S.
CONST. amend. VI; TEX. CONST. art. 1, § 10. The right to counsel, however, does not
mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006). To prevail on a claim of ineffective assistance of counsel, an
appellant must show that (1) trial counsel’s representation fell below an objective
standard of reasonableness, based on prevailing professional norms; and (2) there is
a reasonable probability that the result of the proceeding would have been different
but for trial counsel’s deficient performance. Strickland v. Washington, 466 U.S.
668, 688–92 (1984); Villa v. State, 417 S.W.3d 455, 462–63 (Tex. Crim. App. 2013).
Appellant bears the burden of proving by a preponderance of the evidence that
counsel was ineffective. Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App.
–9–
2017). Review of counsel’s representation is highly deferential; we presume that
counsel’s conduct fell within a wide range of reasonable representation. Villa, 417
S.W.3d at 463; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). In
order for an appellate court to find that counsel was ineffective, counsel’s alleged
deficiency must be affirmatively demonstrated in the record. Mata v. State, 226
S.W.3d 425, 430 (Tex. Crim. App. 2007). Appellant must produce record evidence
sufficient to overcome the presumption that, under the circumstances, the challenged
action was sound trial strategy. Strickland, 466 U.S. at 689; Villa, 417 S.W.3d at
463.
Appellant’s complaint of ineffective assistance is based on several statements
made by his trial counsel during closing argument. After expressing concern about
“this kind of law enforcement,” trial counsel stated:
There’s a difference in the law between innocent and not guilty. That
man sitting right there, he ain’t innocent. He’s not. But I’m asking you
to find him not guilty because of the behavior of these people.
Counsel then expressed how appalled he was by the manner in which law
enforcement cut corners and blatantly ignored the rules in this case. He invited the
jury to share in his concern by acquitting Kennedy and sending a message to the
police that the citizens of the county expected them to adhere to the rules.
In his appellate brief, Kennedy acknowledges that his trial counsel was
technically correct when he stated there is a difference in the law between “innocent”
and “not guilty.” However, because trial counsel did not explain this difference to
–10–
the jury, Kennedy speculates that when counsel said, “he ain’t innocent,” the jury
heard trial counsel say that Kennedy was guilty. Citing United States v. Williamson,
53 F.3d 1500 (5th Cir. 1995), Kennedy argues that this “concession of guilt” by his
trial counsel was a breakdown in the adversarial process sufficient to trigger a
presumption of prejudice, thus satisfying both prongs of the Strickland test for
ineffective assistance. See Williamson, 53 F.3d at 1511.
“The right to effective assistance extends to closing arguments.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003). “[C]ounsel has wide latitude in deciding how best
to represent a client, and deference to counsel’s tactical decisions in his closing
presentation is particularly important because of the broad range of legitimate
defense strategy at that stage.” Id. at 5–6. Indeed, closing argument is an area where
trial strategy is most evident. Butler v. State, No. 05-98-02161-CR, 2000 WL
100116, at *3 (Tex. App.—Dallas Jan. 31, 2000, no pet.) (not designated for
publication) (citing Flemming v. State, 949 S.W.2d 876, 881 (Tex. App.—Houston
[14th Dist.] 1997, no writ)). We do not judge trial counsel’s performance with the
benefit of hindsight. Mata, 226 S.W.3d at 430. Nor do we inquire into counsel’s trial
strategy unless from all appearances there is no plausible basis in strategy or tactics
for counsel’s actions. Ross v. State, 802 S.W.2d 308, 312 (Tex. App.—Dallas 1990,
no pet.). In this case, trial counsel’s statement, “he ain’t innocent,” may have been
an acknowledgment that Kennedy was not a model citizen. But we do not know
counsel’s strategy in making the statement because the record is silent on the matter.
–11–
We must presume that the actions taken by trial counsel were part of a strategic plan
for representing his client. Brennan v. State, 334 S.W.3d 64, 74 (Tex. App.—Dallas
2009, no pet.).
The record on direct appeal will generally “not be sufficient to show that
counsel’s representation was so deficient as to meet the first part of the Strickland
standard” as “[t]he reasonableness of counsel’s choices often involves facts that do
not appear in the appellate record.” Rylander v. State, 101 S.W.3d 107, 110 (Tex.
Crim. App. 2003) (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002)). Trial counsel should ordinarily be given an opportunity to explain his actions
before being denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593
(Tex. Crim. App. 2012). “In the face of an undeveloped record, counsel should be
found ineffective only if his conduct was ‘so outrageous that no competent attorney
would have engaged in it.’” Prine, 537 S.W.3d at 117 (quoting Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Generally, a silent record that provides no explanation for counsel’s actions
will not overcome the strong presumption of reasonable assistance. Brennan, 334
S.W.3d at 71. Based on the totality of this record, we cannot conclude that Kennedy
has established that trial counsel’s performance fell below an objective standard of
reasonableness. Therefore, we are unable to conclude that Kennedy has met the
requirements of Strickland. We overrule Kennedy’s second issue.
–12–
III. Conclusion
Having overruled both of Kennedy’s issues, we affirm the trial court’s
judgment.
/Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE
191307f.u05
Do Not Publish
TEX. R. APP. P. 47.4
–13–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN FRANCIS KENNEDY, On Appeal from the 59th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-19-01307-CR V. Trial Court Cause No. 069725.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Partida-
Kipness and Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 16th day of June, 2021.
–14–