No. 05-02-01113-CR.
Opinion Issued April 8, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 283rd Judicial District, Dallas County, Texas, Trial Court Cause No. F01-58146-LT. Affirmed.
Before Justices JAMES, BRIDGES, and RICHTER.
Opinion By Justice JAMES
Cedrick Demone Lewis appeals his conviction for unlawful possession of a firearm by a convicted felon, punishment for which was enhanced by a prior felony conviction. A jury found him guilty and assessed punishment at confinement for thirteen years. In two issues, appellant contends: (1) during voir dire, a venire member was untruthful about his bias; and (2) the evidence was insufficient to support the conviction. We affirm the trial court's judgment.
Background
On October 22, 2001, Officer Melvin D. Cozby was watching a known "drug house" when he observed appellant pull into the apartment complex parking lot. Officer Cozby watched as appellant, identified in court by Officer Cozby, appeared to engage in a hand-to-hand drug transaction with three other males. When Officer Cozby approached, with information from his dispatcher of the possibility the vehicle appellant was in was a stolen vehicle, appellant attempted to exit the car. But before he left the car, appellant leaned over, "position[ing] himself to be placing something on the floorboard of the vehicle." When appellant opened the door, Officer Cozby was approximately five or six feet from the car. He looked inside and saw a pistol on the floorboard, below where appellant had been sitting. Appellant stated it was not his gun. Shortly thereafter, he fled on foot. Officer Cozby secured the gun — a loaded .45 semi-automatic — and checked under that seat, finding nothing else on the floorboard. He waited for backup to arrive, and once they did, Officer Cozby pursued appellant on foot. He found appellant hiding under some bushes and took him into custody. Officer Timothy Malloy checked the VIN number of the car and determined the vehicle was stolen. While transporting appellant to jail, appellant told Officer Malloy the gun was not his but belonged to his sister. Officer Cozby testified the weapon he recovered was a handgun — a fully operational and loaded firearm. He also stated that, based on appellant's statement about the gun, it seemed appellant was aware of the gun's presence in the vehicle. Based on appellant's movements, Officer Cozby stated the gun had to be what appellant placed on the floorboard because nothing else was on the floorboard other than the weapon. Because it was within appellant's reach and appellant knew of the gun's presence, Officer Cozby testified appellant had care, custody, and control of the weapon. Officer Richard Hamb of the Dallas County Sheriff's Department Identification Bureau testified he took appellant's fingerprints in the courtroom and they matched the fingerprints from a penitentiary packet. The State published the prior conviction listed in that penitentiary packet to the jury, which indicated appellant was convicted of possession of a controlled substance on January 13, 2000. Appellant's mother, Nancy Ham, testified. She stated that she had spoken with appellant and a police officer on appellant's cellular phone on October 22, 2001, and the police officer told her he would be letting appellant go. Ham stated the officer told her he had checked appellant's identification. However, Officer Cozby testified he did not talk to any of appellant's relatives or friends until after he apprehended him from the bushes. He said he spoke with appellant's mother because appellant had given him several different names and did not have identification. Officer Cozby also stated he had not told anyone he would be letting appellant go. Legal and Factual Sufficiency
In his second issue, appellant states the evidence does not support the jury's finding of guilt, arguing therefore, against the legal sufficiency of the evidence. Appellant also, though, concludes his argument by stating the evidence was factually insufficient. Therefore, we will address both legal and factual sufficiency. When we review a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Green v. State, 893 S.W.2d 536, 538 (Tex.Crim.App. 1995). We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). We consider all of the evidence presented. Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). This standard leaves to the fact finder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). The fact finder is the sole judge of the credibility of the witnesses and the weight given their testimony. Id. Thus, the fact finder is free to accept or reject any or all of a witness's testimony. Id.; see also Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). If there is evidence establishing guilt beyond a reasonable doubt, and we see the fact finder believed that evidence, we will not reverse the judgment on legal sufficiency grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). When conducting a factual sufficiency review, we must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). In conducting this review, we may not substitute our determination for that of the fact finder. Id.; Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Johnson, 23 S.W.3d at 11. We may not "find" facts or substitute our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). We do review the fact finder's weighing of the evidence and are authorized to disagree with the fact finder's determination; however, it is not enough that we believe a different result is more reasonable. Id. The charge of the court allowed the jury to find appellant guilty of possession of a firearm by a felon if it found appellant intentionally or knowingly possessed a firearm within five years after his release from confinement for a prior felony conviction. See Tex. Pen. Code. Ann. § 46.04(a)(1) (Vernon 2003). Martinez v. State, 986 S.W.2d 779, 780 (Tex.App.-Dallas 1999, no pet.). The charge further informed the jury that "possess" meant the care, custody, control, or management of property. See Tex. Pen. Code. Ann. § 1.07(a)(39) (Vernon 2003). The charge also identified the January 2000 possession of a controlled substance, detailed in the penitentiary packet, as a felony. To show possession, the State could use direct or circumstantial evidence; direct evidence was not required. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). In making his argument, appellant specifically points out Officer Cozby never saw appellant with the gun. Appellant argues his statement that the gun was not his does not establish possession. However, Officer Cozby testified appellant was the only person in the car. Officer Cozby stated appellant made a gesture toward the floorboard before he exited the car. Appellant stated, upon exiting the car, the gun was not his, showing appellant knew the gun was in the car. When Officer Cozby looked in the car, nothing was on the floorboard other than the gun. Although appellant's mother testified that Officer Cozby spoke with her and stated appellant was not going to be arrested, the jury was free to believe Officer Cozby instead of appellant's mother. Regardless, appellant's mother's testimony did not contradict appellant's possession of the firearm. Furthermore, the State read to the jury the information contained in appellant's penitentiary packet, which stated appellant was convicted of possession of a controlled substance in 2000 — less that five years before appellant's firearm possession in October 2001. The State was not required to prove appellant held the gun or even owned the gun, only that he had "care, custody, control, or management" of the gun. See Tex. Pen. Code. Ann. § 1.07(a)(39). The State was not required to present direct evidence Officer Cozby saw appellant with the gun. See Brown, 911 S.W.2d at 747. Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found appellant was in possession of the firearm. Furthermore, we conclude a jury could have determined appellant had been released from a prior felony conviction less than five years before this incident. Therefore, because we conclude the jury reached a rational conclusion, we likewise conclude the evidence is legally sufficient to sustain appellant's conviction. See Wicker, 667 S.W.2d at 143. Additionally, we cannot conclude the finding of guilt is so obviously weak as to undermine confidence in the verdict or that the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Accordingly, having viewed all the evidence while giving deference to the jury's determination, we also conclude the evidence was factually sufficient. See Clewis, 922 S.W.2d at 129. We resolve appellant's second issue against him. Venire Member's Truthfulness
In his first issue, appellant argues venire member forty-one was untruthful about an alleged bias. Appellant contends venire member forty-one shook his head in agreement with a question that was put to the venire members asking if they would hold appellant's criminal history against appellant. However, appellant has failed to preserve this issue for appellate review. There is nothing in the record to show venire member forty-one shook his head in agreement with the question to which appellant refers. There is nothing in the record to support appellant's argument the State remarked on venire member forty-one nodding his head. There is also nothing in the record to show venire member forty-one served on the jury. There is nothing presented to us for review. Appellant does direct us to article 35.16(a)(10) of the code of criminal procedure, which addresses challenges for cause. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon Supp. 2003). However, to the extent appellant is making an argument he was denied a challenge for cause, when complaining of a denied challenge for cause on appeal, an appellant must show (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venire member; (3) he exhausted all of his peremptory challenges; and (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Mathis v. State, 67 S.W.3d 918, 922 (Tex.Crim.App. 2002). Appellant has directed us to nothing in the record showing any of these requirements were met. Therefore he has failed to preserve error. See Tex. R. App. P. 38.1(h). Appellant contends he was denied his ability to preserve error, but if we are unable to find error in the record, nothing is presented for appellate review. Accordingly, we resolve appellant's first issue against him. We affirm the judgment of the trial court.