No. 05-02-01361-CR
Opinion Filed July 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-54952-IS. Affirmed.
Before Chief Justice THOMAS and Justices WHITTINGTON and O'NEILL
Opinion by Justice MARK WHITTINGTON
A jury convicted Jessie Lynn Fisher of possession of a firearm by a felon. The trial court then assessed punishment, enhanced by two prior felony convictions, at confinement for life. Appellant's first appointed attorney filed a brief in which she concluded the appeal was wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). Appellant filed a pro se response. On initial submission, the Court concluded there was an arguable issue regarding the factual sufficiency of the evidence and abated the appeal for appointment of new counsel. The trial court appointed new counsel. However, after being advised of the dangers and disadvantages of self-representation, appellant dismissed his counsel and filed a pro se brief. In five issues, appellant contends he was subjected to an illegal search and arrest without probable cause, the evidence was legally and factually insufficient to support the conviction, the sentence assessed constitutes cruel and unusual punishment, and he received ineffective assistance of counsel. We affirm.
Background
The evidence shows appellant was paroled on May 10, 2000 after serving time for a murder conviction. On July 22, 2001, at approximately 3:00 a.m., Dallas Police Officer Steven Moore responded to a call reporting a man and a woman arguing in the street. Moore was accompanied by Gail Phillips, a civilian participating in a ride along program. When Moore arrived, he found appellant and Andrea Anderson fighting inside a car in an apartment complex. Anderson was in the driver's seat and had her arm raised in a defensive manner. Appellant was seated in the front passenger seat. Anderson was yelling and screaming. Moore heard Anderson say "Get out of my car." Certain that he had found the people he was looking for, Moore shined his patrol car's spotlight on the vehicle. As Moore approached the car, appellant reached down quickly under the passenger seat. Fearing for his safety, Moore drew his gun and ordered appellant to raise his hands and exit the car. Appellant complied and Moore handcuffed him. Officer Patrick Starr, who had responded to Moore's call for backup, searched the car and found a loaded, .45 caliber, semi-automatic handgun protruding from under the front passenger seat. Starr did not find any other contraband under the front passenger seat. Phillips corroborated Moore's account of appellant's arrest. Neither Moore nor Phillips could see appellant's hand when he made the furtive, reaching gesture. A police report showed the handgun under appellant's seat was tested for fingerprints but no prints were recovered. Neither of the officers could identify the registered owner of either the car or the handgun. Legality Of The Search and Arrest
In his first issue, appellant contends Moore arrested him without probable cause and, therefore, both the warrantless arrest and the search of the car were illegal. Although he was merely a passenger in the car, appellant alleges the search infringed his Fourth Amendment rights, thus giving him standing to challenge the search. Appellant contends all evidence obtained as a result of the allegedly illegal search should be suppressed. The State responds appellant waived the alleged error, he lacks standing, and the search was valid. Paragraph III of appellant's pretrial motion states: Defendant request [sic] a hearing out of the presence of the jury to determine the admissibility of any evidence recovered during the investigation of this cause and which the District Attorney intends to offer as evidence herein and would request that the Court suppress this evidence if the Court finds that the evidence was obtained in violation of the United State [sic] Constitution or laws of the State of Texas.
During the pretrial hearing, when the trial judge inquired whether she needed to rule on any of the pretrial motions, defense counsel informed her that the parties had reached agreements on everything. When the firearm evidence was offered into evidence, appellant's only objection was to the chain of custody. Appellant did not request a hearing outside the presence of the jury. To preserve error, the record must show that appellant made a timely request, objection, or motion, and that the trial court ruled on it. Tex.R.App.P. 33.1(a)(1); Garza v. State, 126 S.W.3d 79, 81-82 (Tex.Crim.App. 2004). Although appellant filed a motion for a hearing outside the jury's presence, he did not obtain a ruling on the motion nor did he object or request a hearing regarding the officers' testimony about the search and the admission of the gun into evidence. We agree with the State that appellant has waived any error. We overrule appellant's first issue. Sufficiency of the Evidence
In his second and third issues, appellant contends the evidence is legally and factually insufficient to show he knowingly and intentionally possessed a firearm. We cannot agree. In reviewing the legal sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). We examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994). It is the exclusive province of the jury to reconcile evidentiary conflicts. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). The jury may choose to believe some testimony and disbelieve other testimony. Id. The jury may draw reasonable inferences from basic facts to ultimate facts. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). After the briefing was completed in this case, the court of criminal appeals reformulated the standard of review for factual sufficiency of the evidence. See Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). In evaluating the factual sufficiency of the evidence, we determine whether a neutral review of all of the evidence demonstrates the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. In conducting our review, we determine first whether the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt and second, whether evidence contrary to the judgment, balanced against the evidence supporting the judgment, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. While we are authorized to disagree with the jury's determination, our review must be conducted with appropriate deference so as to avoid substituting our judgment for that of the jury, and any evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). To convict appellant of unlawful possession of a firearm by a felon, the State must prove he possessed a firearm within five years of his release from confinement or supervision imposed for a felony conviction. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3688 (amended 2001) (current version at Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2004)); Martinez v. State, 986 S.W.2d 779, 780 (Tex.App.-Dallas 1999, no pet.). An accused possesses a firearm if he has it in his actual care, custody, control, or management. See Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2004). Because appellant was not carrying the handgun, the State's evidence must affirmatively link him to the weapon. See Young v. State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd). In determining the sufficiency of the affirmative links, we apply the same rules used in drug possession cases. Id. Thus, the State must show, using either direct or circumstantial evidence, that: (1) appellant exercised actual care, control, or custody of the handgun; (2) he was conscious of his connection with it; and (3) he possessed the handgun knowingly or intentionally. Bates v. State, 05-03-00195-CR, 2004 WL 51840, at *3 (Tex.App.-Dallas January 13, 2004, no pet.). Among the factors we may consider in determining the affirmative links between appellant and the handgun are whether: (1) the handgun was in plain view; (2) appellant owned the car; (3) appellant was the driver; (4) appellant was in close proximity and had ready access to the handgun; (5) the handgun and appellant were on the same side of the car; (6) contraband was found on him; (7) he attempted to flee; (8) his conduct indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (9) he had a special connection or relationship to the handgun; (10) the handgun was found in an enclosed space; (11) occupants of the automobile gave conflicting statements about relevant matters; and (12) appellant made affirmative or incriminating statements connecting him to the handgun. Id. The number of factors present is less important than the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link appellant to the handgun. Id. Appellant contends the evidence is legally and factually insufficient because many of the typical linking factors are absent in this case. However, as the State notes in its brief, the absence of various affirmative links does not constitute evidence of innocence to be weighed against the links present in the evidence. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App. 1976). Appellant also disputes the credibility of some of the testimony presented and offers his own inferences to draw from the evidence. Appellant questions whether the handgun was visible as Starr testified given that the offense occurred at 3:00 a.m. Moreover, because the initial call to police reported a man and a woman arguing in the street, appellant alleges he was not in the car long enough to see the protruding handgun. Appellant finds it significant that Anderson, who was not arrested, did not warn Moore that appellant had a gun even though she and appellant were arguing when Moore arrived. Appellant disputes whether his bending down constitutes a furtive gesture, and contends it would be rational for a jury to conclude that, as an ex-convict recently released from prison, he was merely nervous and unaware the gun was present. In light of the standards of review, we defer to the jury's resolution of matters of credibility and weight of the evidence and the inferences to draw from the testimony. See Sanders, 119 S.W.3d at 820; Barnes, 876 S.W.2d at 321; Johnson, 23 S.W.3d at 7. Viewed in the light most favorable to the judgment, the evidence shows appellant quickly reached down under his seat when approached by a police officer. A handgun was discovered protruding from under appellant's seat. The handgun was close to appellant and easily accessible to him. We conclude this evidence is legally sufficient to affirmatively link appellant to the handgun. Cf. Corpus v. State, 30 S.W.3d 35, 38 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (firearm affirmatively linked to defendant driver because it was within his reach, more accessible to him than to passenger, and nervousness coupled with furtive movements could be inferred as reflecting consciousness of guilt); Davis v. State, 855 S.W.2d 855, 857 (Tex.App.-Eastland 1993, no pet.) (concluding vehicle passenger was affirmatively linked to cocaine found on floorboard by his seat after officers observed him making furtive movements involving possibly putting something underneath the seat). Before resolving the factual sufficiency issue, we first discuss the import of Nguyen v. State, 54 S.W.3d 49 (Tex.App.-Texarkana 2001, pet. ref'd). In Nguyen, a police officer conducting a traffic stop discovered a handgun hidden completely from view under a removable back seat behind the driver. Id. at 52. Although the officer did not see the handgun in the defendant's hand, he observed the defendant, sitting in the front passenger seat, lean between the front seats to the back of the vehicle just before the car stopped. Id. at 51. The officer testified the handgun was positioned as if a passenger had placed it under the seat. Id. at 52. The driver of the car did not stop immediately, but did pull over in about twenty seconds. Id. at 51-52. When the officer approached the car, the defendant pretended to be asleep. Id. at 51. The car belonged to the defendant's brother and no fingerprints were obtained from the handgun. Id. at 52. The reviewing court concluded the evidence was legally sufficient to support the defendant's conviction for unlawful possession of a firearm by a felon. Id. at 55. However, because the car did not belong to Nguyen, the officer observed the car for only twenty seconds, there was no effort made to flee, the officer did not see Nguyen handle the gun, and no fingerprints were obtained, the court concluded the evidence was factually insufficient. Id. In the present case, the State cites Nguyen for its legal sufficiency holding, while appellant cites Nguyen on the factual sufficiency issue. The State distinguishes Nguyen on the factual sufficiency issue. The State contends Moore had a better view of appellant's furtive gesture than did the officer in Nguyen. The State also points out the officer in Nguyen admitted it might not have been easy for the accused to lift the back seat from his position in the front seat. Id. at 52. In contrast, the State contends, the handgun in the present case was easily accessible to appellant. Finally, the State contends the absence of fingerprints or a visual sighting of appellant with the handgun is not evidence of innocence. We agree with the State. Unlike the officer in Nguyen who observed a furtive gesture while pursuing the defendant's car, Moore observed appellant make the reaching motion from a distance of ten-to-fifteen feet. Moore demonstrated the motion for the jury. Appellant's motion so alarmed Moore that he drew his own firearm and ordered appellant to raise his hands or else Moore would shoot him. The jury, in its role as fact finder, was authorized to infer that appellant was hiding the handgun under his seat when he reached down. To follow Nguyen and hold the evidence factually insufficient, on these facts, would substantially intrude upon the jury's role as fact finder. See Johnson, 23 S.W.3d at 7. Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to support the jury's verdict. See Zuniga, 2004 WL 840786 at *7. We overrule appellant's second and third issues. Cruel And Unusual Punishment
In his fourth issue, appellant contends his life sentence is extreme, grossly disproportionate to the offense, and thus constitutes cruel and unusual punishment. In this case, appellant did not complain about his sentence either at the time it was imposed or in a motion for new trial. Accordingly, he has failed to preserve error. Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Moreover, even if appellant had objected, the punishment assessed lies within the proper punishment range and, therefore, is not unconstitutionally cruel and unusual punishment. Id. Assuming appellant had objected, his proportionality argument would likewise fail because he does not present any comparison cases involving punishment for possession of a firearm by a felon enhanced with two prior felony convictions. Id. at 724. Thus, we overrule appellant's fourth issue. Ineffective Assistance Of Counsel
In his fifth issue, appellant contends he received ineffective assistance of counsel because trial counsel failed to object to the punishment as being cruel and unusual and thus did not preserve his right to challenge the punishment on direct appeal. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). The record is silent regarding why counsel did not object to the punishment assessed. Without trial counsel's explanation, we conclude the record is insufficient to evaluate whether counsel's services fell below an objective standard of reasonableness. Id. Additionally, before we may conclude counsel was ineffective for failing to make an objection, appellant must show the trial judge would have erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). Appellant cannot make such a showing because his sentence lies within the punishment range and is therefore unassailable on grounds of cruel and unusual punishment. See Castaneda, 2003 WL 21463920, at *4. It is not ineffective assistance for trial counsel to forego making frivolous arguments and objections. See Edmond v. State, 116 S.W.3d 110, 115 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). We conclude appellant has not met the first prong of the Strickland test. Likewise, we also conclude appellant cannot meet the second prong of Strickland The record contains ample evidence showing the futility of an objection to the punishment as being cruel and unusual. Appellant was sentenced as a habitual offender. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004). The purpose of the habitual offender statute is to increase the applicable punishment range for offenders who demonstrate "a pronounced and prolonged inability to bring [their] conduct within the social norms prescribed by the criminal laws of the State of Texas." Lackey v. State, 881 S.W.2d 418, 422 (Tex.App.-Dallas 1994, pet. ref'd). Although appellant characterizes his firearm possession offense as minor, the enhanced punishment attaches to the defendant based on his status as a repeat or habitual offender without regard to the offense for which he stands convicted. Branch v. State, 833 S.W.2d 242, 246 (Tex.App.-Dallas 1992, pet. ref'd). The record in this case shows appellant had a long record of convictions including murder, aggravated robbery, robbery, and attempted burglary. Thus, the trial court could easily conclude appellant deserved severe punishment as a habitual offender. Because appellant cannot satisfy either prong of Strickland, we resolve his fifth and final issue against him. See Strickland, 466 U.S. at 687-88, 694. We affirm the trial court's judgment.