Kelly v. State of Texas, 06-16-00185-CR (TexApp Dist 08/31/2017)
During the execution of a search warrant, officers located a large amount of marihuana, cocaine, and ecstasy on a table between the two recliners where appellant and another were seated. The officer also found two pistols, each within reach of the two men. Appellant was subsequently convicted of possession with intent to deliver a controlled substance and possession of a firearm by a felon. Appellant raised four issues on appeal: (1) sufficiency of the evidence; (2) sufficiency of the chain of custody; (3) in-court identification of him by a witness; and (4) denial of his motion to suppress. The court affirmed denial of the motion to suppress holding the search warrant was not stale and the supporting affidavit established there was a "fair probability" that contraband or evidence of a crime would be found at appellant's location at the time the warrant was issued, regardless of the amount of time between the receipt of the confidential informant's information and the execution of the warrant. Further, the court affirmed the in-court identification concluding that, even though the out-of-court identification was "impermissibly suggestive," the evidence "clearly showed that [the witness's] prior observations were sufficient to serve as an independent origin for the in-court identification" Moreover, the court found the chain of custody was sufficient to establish appellee acquired the illegal drugs during the drug raid, checked the items in at the law enforcement facility, delivered the items to the laboratory, and then retrieved those times and delivered them to court. Finally, the court affirmed the sufficiency of the evidence supporting appellant's conviction as the logical force of all the evidence supported a finding that appellant possessed the narcotics as alleged with an intent to deliver. Marquis DeMichael Kelly v. The State of Texas, Texarkana Court of Appeals, Case No.: 06-16-00185-CR, 08/31/2017
|September 13, 2017
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