Summary
concluding that evidence was legally sufficient to support defendant's conviction for unlawful possession of firearm even though defendant's girlfriend testified that she bought shotgun and placed it in defendant's car after using it where, among other things, evidence showed that shotgun was found in defendant's trunk and that defendant admitted to having gun "when it was obvious that an officer would inventory the trunk of his car"
Summary of this case from Villarreal v. StateOpinion
No. 01-04-00973-CR
Opinion issued June 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 986877.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellant, Albert Ray Jones, was charged by indictment with the felony offense of felon in possession of a firearm, with two enhancements. A jury found appellant guilty as charged, found the enhancements to be true, and assessed punishment at confinement for 25 years. On appeal, appellant challenges the legal and factual sufficiency of the evidence to support the verdict. We affirm.
Facts
On May 6, 2004, at approximately 2:00 a.m., Houston Police Officers Turrentine and Duron were on patrol near Lockwood Avenue when they saw a car stopped in the middle of a side street blocking both lanes of traffic and a woman leaning inside the passenger door of the car. Because the area was known for prostitution, the officers approached the car. The woman jumped in the car, which then drove away. The officers followed, activated their emergency lights, and stopped the car. Appellant and the woman said that they did not know each other. Duron arrested the woman for possession of a controlled substance and placed her in the back seat of the patrol car. Turrentine asked the driver, appellant, for identification. When Turrentine ran appellant's identification, he discovered that appellant had three city warrants for unpaid traffic tickets. Turrentine then arrested appellant, handcuffed him, and placed him in the backseat of the patrol car. Turrentine sat in the patrol car with appellant and the woman. Turrentine testified that he did not recall appellant's being on a cell phone at any time during the arrest, but he was certain that appellant's hands were cuffed behind appellant while appellant was sitting in the back seat of the patrol car. Duron testified that he inventoried appellant's car and found a pill bottle with six 9-millimeter bullets, one of which was a hollow point bullet, in the front center console area. Duron then asked appellant whether he had any guns in the car, and appellant said that he did not. When Duron went to the back of the car to search the trunk, appellant told Turrentine that there was a loaded shotgun in the trunk. Duron searched the trunk and found the shotgun, a Crown Royal bag filled with shotgun shells, some loose shells, and two other stocks for the shotgun. The shotgun was loaded with eight rounds of ammunition, which were removed by Turrentine. Duron testified that he did not recall that appellant was on a cell phone during the arrest. He also testified that it is possible for a person to take or make a cell phone call while handcuffed. The trial court admitted defendant's exhibit 8, the Houston Police Department's inventory of appellant's property, which listed two cell phones. Appellant's girlfriend, Felicia Howard, testified that she had bought a shotgun on May 5 and that appellant had shown her how to load it. She further testified that she had used appellant's car that day and had left the shotgun in the trunk of the car. She said that, because she had not heard from him by 1:00 a.m. on May 6, she called appellant on his cell phone, and he told her that he was under arrest for driving with a suspended license. She testified that she then told him she had left her shotgun in the trunk of his car. She further testified that she heard him repeat this information to the officer. She said that appellant explained to her that he was handcuffed to the door and was standing there talking to her. She testified that she talked to him the whole time he was being arrested. The trial court admitted Howard's telephone records into evidence. These records, according to Howard, show that Howard called appellant's cell phone number five times between 1:32 a.m. and 3:36 a.m. on May 6, 2004. Howard testified that appellant did not answer his cell phone when she called at 1:32, 3:15, or 3:36 a.m. On cross-examination, Howard admitted that the only call from her that was shown on appellant's incoming call log for May 6, 2004 was at 3:17 a.m.Standard of Review
In reviewing the evidence for legal sufficiency, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). When reviewing the evidence for factual sufficiency, we must view all the evidence in a neutral light and may set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the "beyond a reasonable doubt" standard of proof could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). Under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex App.-Houston [1st Dist.] 2003, pet. ref'd). The jury may believe all, some, or none of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (stating that jury "could choose to believe or not believe the witnesses, or any portion of their testimony"). This standard of review applies to both direct and circumstantial evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000).Analysis
In his sole issue, appellant contends that the evidence was legally and factually insufficient to support his conviction. Appellant argues that the evidence "clearly showed" that the owner of the shotgun was Felicia Howard and that appellant did not know that the shotgun was in the trunk of his car. Thus, appellant challenges the sufficiency of the evidence to establish the "knowingly" element of the offense. For the offense of felon in possession of a firearm, the State must prove that the accused had possession of the firearm. The Texas Penal Code provides, in pertinent part:(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. . . .Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2004-2005). To establish unlawful possession of a firearm by a felon, the State must show that the accused is a convicted felon who, within five years of his release from confinement or from community supervision, knowingly and voluntarily possessed a firearm. Powell v. State, 112 S.W.3d 642, 644 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The State may prove knowing possession by establishing an affirmative link between the accused and the firearm, either by direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Some circumstantial factors include whether the contraband was (1) in a car driven by the accused, (2) in a place owned by the accused, (3) conveniently accessible to the accused, (4) in plain view, or (5) found in an enclosed space. Powell, 112 S.W.3d at 644-45. In this case, viewed in the light most favorable to the verdict, the evidence shows that the shotgun was found in the trunk of appellant's car; the shotgun was fully loaded, additional shells were in a Crown Royal bag, and some shells were loose in the trunk; and appellant first denied having a gun, then admitted that he did when it was obvious that an officer would inventory the trunk of his car. Appellant's girlfriend testified that appellant had shown her how to load the shotgun. She also testified that she had never seen the Crown Royal bag containing shotgun shells before the day of the trial. These facts are legally sufficient to affirmatively link appellant to the firearm. Appellant also claims that the evidence is factually insufficient to support his conviction. Viewed in a neutral light, the evidence shows that Howard testified that she was the owner of the shotgun and placed it in appellant's car trunk; that she talked to appellant on his cell phone during his arrest to tell him about the shotgun; and that she heard appellant tell the arresting officers that her shotgun was in his trunk. She produced her telephone records as evidence that she made the calls to appellant. However, the State presented controverting evidence that appellant's cell phone received only one call from Howard on the morning in question, a call that was received on appellant's phone at 3:17 a.m. and that was not reflected in Howard's telephone records, according to Howard's interpretation of those records. The jury was entitled to believe the testimony of the arresting officers and to disbelieve, in whole or in part, Howard's testimony. See Sharp, 707 S.W.2d at 614. We do not find evidence in the record that greatly outweighs the evidence supporting the trial court's judgment, nor is the contrary evidence so strong that the jury could not find appellant guilty beyond a reasonable doubt. We overrule appellant's sole issue.