Kenyetta Danyell Walker v. State
07-16-00245-CR
| Tex. App. | Mar 30, 2017Background
- Appellant Kenyetta Daniel Walker was arrested after a shoot‑out at a residence; surveillance video showed three intruders, gunfire, a dead intruder in the yard, and Walker removing a bag later found to contain controlled substances (including hydrocodone).
- Police found drug paraphernalia, scales, baggies, raw marijuana, large amounts of small bills, and many drugs concentrated in a bedroom referred to as a "man‑cave," where evidence suggested Walker kept much of her clothing.
- The State indicted Walker for engaging in organized criminal activity under Tex. Penal Code § 71.02, alleging she possessed 400+ grams of hydrocodone with intent to deliver and with intent to establish/participate in a combination or its profits.
- The indictment was amended before trial to allege possession with intent to deliver; the jury charge mirrored the indictment; Walker was convicted and appealed, challenging legal and factual sufficiency.
- The court concluded the evidence, when viewed in the light most favorable to the prosecution, was legally sufficient to support conviction on the charged theory (drug business, possession with intent to deliver, intent to participate in a combination).
- However, the court identified a separate problem: possession with intent to deliver is not one of the predicate offenses listed in § 71.02(a), so the indictment and corresponding jury charge permitted conviction under an invalid predicate, constituting egregious charge error requiring reversal and a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to support conviction | Evidence (video, drugs, paraphernalia, money, bedroom use) shows Walker possessed drugs with intent to deliver and participated in a drug operation | Walker argued the evidence was legally and factually insufficient | Court: Legal sufficiency satisfied under Villa/Brooks framework; overruled sufficiency challenge |
| Validity of indictment / jury charge under § 71.02 | State prosecuted under § 71.02 for engaging in organized criminal activity based on possession with intent to deliver as the predicate offense | Walker argued charge/error; court sua sponte considered whether possession with intent to deliver is a valid § 71.02 predicate | Court: Possession with intent to deliver is not a listed predicate under § 71.02(a); the charge allowed conviction for an offense outside the statute, error was egregious, reversal and remand for new trial required |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (legal/factual sufficiency principles and limits on factual sufficiency review)
- Sanchez v. State, 209 S.W.3d 117 (Tex. Crim. App. 2006) (appellate courts may raise jury‑charge error sua sponte)
- Ambrose v. State, 487 S.W.3d 587 (Tex. Crim. App. 2016) (standard for egregious harm review when no timely objection to jury charge)
- Marshall v. State, 479 S.W.3d 840 (Tex. Crim. App. 2016) (describing what constitutes egregious harm from charge error)
- Garcia v. State, 32 S.W.3d 328 (Tex. App.—San Antonio 2000) (holding mere possession of a controlled substance is not a predicate offense under § 71.02)