Opinion
NO. 01-16-00884-CR
09-14-2017
TERRELL RAMON DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Case No. 1495493
MEMORANDUM OPINION
A jury found appellant, Terrell Ramon Davis, guilty of the offense of unlawful possession of a firearm by a felon. After he pleaded true to the allegation in an enhancement paragraph that he had been previously convicted of a felony offense, the jury assessed his punishment at confinement for eighteen years. In his sole issue, appellant contends that the evidence is insufficient to support his conviction.
See TEX. PENAL CODE ANN. § 46.04(a)(2) (Vernon 2011).
We affirm.
Background
Houston Police Department ("HPD") Officer E. Garza testified that while on duty in his patrol car with his partner, HPD Officer W. Nguyen, on January 17, 2016, he saw a car traveling without "tail lights" or a front license plate. As he followed the car, which contained a driver and appellant, seated in the front passenger's seat, Garza activated his "take-down lights" and "bright LED lights" so that he could see inside the car as he initiated a traffic stop. As the car continued to travel, Garza saw appellant's "arm come out from the vehicle" and "something" "dark" that "look[ed] like a gun" "go flying" and land in someone else's front yard. When the driver eventually stopped the car, Garza and Nguyen approached it. Because the driver could not "produce any kind of license or . . . insurance," Garza detained him and Nguyen detained appellant. Garza then "walked . . . back" to the front yard where appellant had "tossed" the object that "look[ed] like a gun," and he recovered a firearm.
During Officer Garza's testimony, the trial court admitted into evidence the firearm and the "rounds that were inside" of it.
Officer Garza further testified that he was certain that appellant was the person who had "thr[own] th[e] gun from th[e] car." He did not see "any kind of special movements" before the firearm was thrown that would indicate to him that the driver had handed the firearm to appellant. And when asked whether he thought "that it was the driver [of the car who had] reach[ed] through and throw[n] [the firearm] out" of the car, Garza responded, "no."
Officer Nguyen testified that while on duty with his partner, Officer Garza, on January 17, 2016, he was seated in the front passenger's seat of their patrol car when he heard Garza say "Oh, crap" or "Oh, shit." (Internal quotations omitted). Nguyen then "look[ed] up" and saw "a black object [being] thrown out of the [front] passenger's [side] window" of the car that they had been following. Although Nguyen did not see the "object" in appellant's hand specifically, he did see the "object" "fly[] out [o]f the [car's front] passenger's side window."
Officer Nguyen further explained that after the car, in which appellant was a passenger, stopped, he approached the car on the passenger's side and detained appellant, while Officer Garza approached the car on the driver's side and detained the driver. Garza then "went back to [the location] where he [had seen] the object [from the car being] thrown" and recovered a firearm.
The trial court admitted into evidence a judgment reflecting that appellant was convicted of the felony offense of possession of a controlled substance on June 11, 2004 and sentenced to confinement for six months, and a "Stipulation of Evidence" signed by appellant, stating: "I am the same TERRELL DAVIS who was convicted in the 339th DISTRICT COURT of HARRIS County, Texas, on June 11, 2004 for POSSESSION OF A CONTROLLED SUBSTANCE, a STATE JAIL FELONY, in Cause No. 0978436."
Standard of Review
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
Sufficiency of Evidence
In his sole issue, appellant argues that the evidence is legally insufficient to support his conviction because the State did not prove that he "knowingly and intentionally possessed a firearm" and "offered no evidence of the date [that] [a]ppellant [was] . . . released from confinement or supervision."
A person who has been convicted of a felony commits the offense of unlawful possession of a firearm if he possesses a firearm either: (1) after conviction and before the fifth anniversary of the end of his sentence or (2) at any time thereafter at any location other than the premises at which he lives. See TEX. PENAL CODE ANN. § 46.04(a) (Vernon 2011); see also Macias v. State, 136 S.W.3d 702, 706 (Tex. App.—Texarkana 2004, no pet.) (noting "two ways by which a person who has previously been convicted of a felony can be held criminally responsible for unlawfully possessing a firearm"). Here, the State, in the indictment, alleged that appellant "unlawfully, intentionally and knowingly possess[ed] a firearm at a location other than the premises at which [he] lived, after being convicted of a felony offense . . . ." See TEX. PENAL CODE ANN. § 46.04(a)(2).
Possession
Appellant first argues that the evidence does not establish that he "knowingly and intentionally possessed a firearm" because Officers Garza and Nguyen only saw him "throw a dark object from a moving car"; "[t]he hour was late and the lighting [was] poor"; the firearm was "found alongside a public street" in "a random front yard" that was "accessible to anyone"; Garza and Nguyen "could not say if the dark object had been handed to [a]ppellant by the driver, how long [a]ppellant may have held it, or even if [he] knew what the object was"; "no attempt was made to recover gunpowder residue or any other tangible evidence [to show] that [appellant] had actually used or handled the [firearm]"; the firearm was "never tested for prints"; the driver did not "confirm that the [firearm] belonged to [a]ppellant"; there was "no special relationship linking [a]ppellant" to the firearm; "no one saw [appellant] firing the [firearm]"; and appellant "made no attempt to run and hide and hence showed no consciousness of guilt."
"Possession" means "actual care, custody, control, or management." TEX. PENAL CODE ANN. § 1.07(a)(39) (Vernon Supp. 2016) (internal quotations omitted). A defendant commits a possession offense only if he voluntarily possesses the prohibited thing. Id. § 6.01(a) (Vernon 2011). Possession is voluntary "if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." Id. § 6.01(b); Williams v. State, 313 S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
If a firearm is not found on a defendant or is not in his exclusive possession, the evidence must affirmatively link him to the firearm. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006); Williams, 313 S.W.3d at 397; James v. State, 264 S.W.3d 215, 218-19 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). In other words, a defendant's connection with the firearm must be more than just fortuitous. Evans, 202 S.W.3d at 161-62.
In determining whether there is an affirmative link between a defendant and a firearm, courts may consider whether: (1) the firearm was in plain view; (2) the defendant was the owner of the car in which the firearm was found; (3) the defendant was in close proximity and had ready access to the firearm; (4) the firearm was found on the same side of the car as the defendant; (5) conduct by the defendant indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (6) the defendant had a special connection or relationship to the firearm; (7) the place where the firearm was found was enclosed; (8) occupants of the car gave conflicting statements about relevant matters; (9) the defendant was the driver of the car in which the firearm was found; (10) the firearm was found on the defendant; (11) the defendant attempted to flee; and (12) affirmative statements connect the defendant to the firearm, including incriminating statements made by the defendant when arrested. Williams, 313 S.W.3d at 397-98; James, 264 S.W.3d at 219.
The evidence used to satisfy these elements can be either direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); James, 264 S.W.3d at 219; Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.— Houston [1st Dist.] 2002, pet. ref'd). The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Evans, 202 S.W.3d at 162; James, 264 S.W.3d at 219; Hawkins, 89 S.W.3d at 677. The absence of various affirmative links does not constitute evidence of innocence to be weighed against the affirmative links present. Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James, 264 S.W.3d at 219.
Here, Officer Garza testified that while on duty in his patrol car on January 17, 2016, he saw a car traveling without "tail lights" or a front license plate. As he followed the car, in which appellant was seated in the front passenger's seat, Garza activated his "take-down lights" and "bright LED lights" to see inside the car as he initiated a traffic stop. As the car continued to travel, Garza saw appellant's "arm come out of the vehicle" and "something" "dark" that "look[ed] like a gun" "go flying" and land in someone else's front yard. After detaining the driver of the car and appellant, and then returning to the location where he had seen appellant "toss[]" the object that "look[ed] like a gun," Garza recovered a firearm with "rounds" inside.
Notably, during his testimony, Officer Garza specifically stated that he saw appellant "toss a gun" from the car, and he was certain that appellant was the person who had "thr[own] th[e] gun from th[e] car." Garza also explained that he did not see "any kind of special movements" before the firearm was thrown that would indicate to him that the driver of the car had handed the firearm to appellant. And when asked whether he thought "that it was the driver [of the car who had] reach[ed] through and throw[n] [the firearm] out," Garza responded, "no."
Officer Nguyen similarly testified that while on duty with Officer Garza, he saw "a black object [being] thrown out of the [front] passenger's [side] window" of the car. After the officers stopped the car and detained the driver and appellant, who was in the front passenger's seat of the car, Garza "went back to [the location] where he [had seen] the object [from the car being] thrown" and recovered a firearm.
The testimony of the law enforcement officers is sufficient to establish that appellant knowingly possessed the firearm. See Gaitan v. State, 393 S.W.3d 400, 401-02 (Tex. App.—Amarillo 2012, pet. ref'd) (evidence sufficient to establish defendant possessed firearm where he "was seen discarding a metallic object" and law enforcement officers discovered firearm "in the vicinity of where [he] tossed the object"); Davis v. State, No. 01-08-00318-CR, 2009 WL 1331583, at *1-3 (Tex. App.—Houston [1st Dist.] May 14, 2009, no pet.) (mem. op., not designated for publication) (law enforcement officer's testimony he saw defendant throw object "that appeared to be a 'weapon'" and firearm recovered from location where defendant "had thrown the object" sufficient to establish knowing possession); Gill v. State, 57 S.W.3d 540, 544-45 (Tex. App.—Waco 2001, no pet.) (State proved sufficient affirmative links to show defendant knowingly possessed firearm where law enforcement officer testified he saw defendant "throw a black object from his car," and when he "returned to that spot," he "found a bag and a handgun"); see also Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) ("The testimony of a single eyewitness . . . is sufficient to support a felony conviction."); Williams, 313 S.W.3d at 397-98; James, 264 S.W.3d at 219.
In other words, the logical force of the evidence in this case establishes affirmative links connecting appellant to the firearm recovered by Officer Garza at the location where he and Officer Nguyen had seen appellant "toss[]" an object that "look[ed] like a gun" from the side of the car where appellant was sitting. See Evans, 202 S.W.3d at 162; James, 264 S.W.3d at 219; Hawkins, 89 S.W.3d at 677.
Further, to the extent that appellant focuses on the evidence that is absent from the record, such as the lack of gunshot residue, fingerprints, or an affirmative statement by the driver that appellant was the person who threw the firearm out of the car, we note that absence of various affirmative links does not constitute evidence of innocence. See Hernandez, 538 S.W.2d at 131; James, 264 S.W.3d at 219-20 (rejecting defendant's argument evidence insufficient to link him to firearm "because no one saw him handle the gun; he testified it was not his gun; no matching fingerprint was found on either the gun or the bullets; the gun was not in plain view; he was only in the car for a short period of time; he did not possess other contraband; he did not flee; he could have been moving around for reasons other than to push a gun under the seat; he did not own the vehicle; and the place where the gun was found was not enclosed"); see also Freeman v. State, No. 07-16-00334-CR, 2017 WL 393982, at *1-2 (Tex. App.—Amarillo Jan. 26, 2017, no pet.) (mem. op., not designated for publication) (defendant's focus on "what [was] absent from the record, such as evidence of his fingerprints on the weapon or evidence that the weapon was registered to him" misplaced, where "the true question [was] whether the evidence actually admitted, when coupled with the logical inferences that one [could] make from it, [was] enough"); Haynes v. State, No. 01-09-00380-CR, 2010 WL 5250881, at *3-4 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, pet. ref'd) (mem. op., not designated for publication) (evidence sufficient although "State could not match [defendant]'s fingerprints to a latent fingerprint from the gun"). And we note that the State is not required to disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Cantu v. State, 395 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).
Here, viewing the evidence in the light most favorable to the jury's verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant knowingly possessed the firearm.
Date of Release
Appellant next argues that the evidence is insufficient to support his conviction because the State did not produce evidence of "the date" that he was "release[d] from confinement or supervision."
As previously noted, the State, in the indictment, alleged:
. . . [Appellant] on or about JANUARY 17, 2016, did then and there unlawfully, intentionally and knowingly possess a firearm at a location other than the premises at which [he] lived, after being convicted of the felony offense of POSSESSION OF A CONTROLLED SUBSTANCE in the District Court of the 339TH DISTRICT Judicial District, HARRIS County, Texas, in Cause Number 0978436, on June 11, 2004.
A person commits the offense of unlawful possession of a firearm, if, having been convicted of a felony, he possesses a firearm at any location other than the premises where he lives. TEX. PENAL CODE ANN. § 46.04(a)(2); see State v. Mason, 980 S.W.2d 635, 639 (Tex. Crim. App. 1998) (explaining under section 46.04(a)(2), felon prohibited from possessing firearm at any time at all places away from his residence, "no matter how much time has passed from the date of [his] release from confinement or supervision"); Rollerson v. State, 196 S.W.3d 803, 808 (Tex. App.—Texarkana 2006), aff'd, 227 S.W.3d 718 (Tex. Crim. App. 2007); Ingram v. State, 978 S.W.2d 627, 631 (Tex. App.—Amarillo 1998, no pet.).
In support of his argument that the State was required to prove, as an element of the offense, "the date" that he was "release[d] from confinement or supervision," appellant relies on cases in which the State prosecuted the defendants under Penal Code section 46.04(a)(1) only, not under section 46.04(a)(2) , as in the instant case. See, e.g., Saldana v. State, 418 S.W.3d 722, 725 (Tex. App.—Amarillo 2013, no pet.) (noting defendant "charged only under section 46.04(a)(1)"); Fagan v. State, 362 S.W.3d 796, 799-800 (Tex. App.—Texarkana 2012, pet. ref'd) (conceding "proof of the date of release" not required under section 46.04(a)(2), but explaining "indictment specified that it was relying on [s]ection 46.04(a)(1) only" (internal quotations omitted)); Haynes v. State, No. 01-09-00380-CR, 2010 WL 5250881, at *3 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, pet. ref'd) (mem. op., not designated for publication) (citing other section 46.04(a)(1) cases); James, 264 S.W.3d at 218.
Appellant has not provided the Court with any case authority in which an appellate court has held, when a defendant is prosecuted under section 46.04(a)(2), that the State must prove, as an element of the offense, "the date" that the defendant was "release[d] from confinement or supervision." See TEX. R APP. P. 38.1(i); Mason, 980 S.W.2d at 639 (noting differences between sections 46.04(a)(1) and (a)(2)); see also Nguyen v. State, 54 S.W.3d 49, 56 (Tex. App.—Texarkana 2001, pet. ref'd) ("The statute does not require the [S]tate to prove the date the defendant was released from prison or supervision unless the defendant is in possession of a firearm at the premises where he lives."), overruled in part on other grounds, Fagan, 362 S.W.3d at 799 n.1. And "[w]e do not read section 46.06 to necessarily require proof of the date of release from confinement in all cases." Tapps v. State, 257 S.W.3d 438, 445 (Tex. App.—Austin 2008), aff'd on other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009); see also Saldana, 418 S.W.3d at 726 (explaining statutory provision under which defendant indicted matters when determining whether State must prove date of release); Fagan, 362 S.W.33d at 800 (section 46.04 does not necessarily require proof of date of release from confinement).
Viewing the evidence in the light most favorable to the jury's verdict, a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense of unlawful possession of a firearm by a felon.
Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).