AMEY v. STATE

Full title: EDWARD DEMOND AMEY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 31, 2009

No. 14-08-00368-CR (Tex. App. Mar. 31, 2009)

Opinion

No. 14-08-00368-CR

Memorandum Opinion filed March 31, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the 122nd District Court, Galveston County, Texas, Trial Court Cause No. 06CR3706.

Panel consists of Justices YATES, GUZMAN, and SULLIVAN.

MEMORANDUM OPINION

EVA M. GUZMAN, Justice.

A jury convicted Edward Demond Amey of unlawful possession of a firearm by a felon, and the trial court assessed punishment at five years' confinement in the Texas Department of Criminal Justice, Institutional Division. In a single issue, appellant challenges the legal sufficiency of the evidence to support his conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 2006, Texas City Police Department ("TCPD") officer Salvador Chapa was dispatched to a local gameroom to investigate a robbery call. The two suspects in the robbery were described as black males. At appellant's trial, Chapa testified that he saw two black males walking near the gameroom and initiated contact with them. He identified himself as a police officer and told them he was investigating a nearby robbery. One of the men, identified later that evening as appellant, immediately ran from Chapa. Chapa pursued appellant, but lost him during the chase. According to Chapa, while he was chasing appellant, Chapa saw him throw something into a "bushy area" near an apartment complex. Chapa also saw that appellant lost a shoe during the chase. Chapa explained that, after losing appellant in the apartment complex, he returned to the area where he had seen appellant throw an object into the bushes and lose his shoe; Chapa recovered a .380 caliber pistol and a blue Nike tennis shoe, both of which were entered into evidence at appellant's trial. Chapa testified that he and other TCPD officers set up a "perimeter area" around the apartment complex in which Chapa had lost sight of appellant. They also called in a K-9 unit to assist in the search for appellant. Shortly afterwards, officers became involved in a family disturbance at one of the apartments. Appellant, wearing one blue Nike tennis shoe and a "house shoe," approached one of the officers who was investigating the family disturbance. This officer radioed Chapa, who proceeded to the scene of the disturbance; Chapa identified appellant as the individual who had fled from him. Appellant was arrested. TCPD captain Brian Goetschius questioned appellant the day after his arrest. Appellant signed the following voluntary statement, which was read to the jury and admitted into evidence in written form:

Q. [by Goetschius]: OK, last night you were arrested. Just prior to being arrested did you possess a handgun?

A. [by appellant]: Yeah.

Q.: OK, what type handgun did you possess and why did you have it?

A.: . . . I had a 380, it was for my own protection man,,, see [sic], I am a felon, anybody that been on parole aint [sic] supposed to have no gun man. They said they pulled me over for a . . . robbery at the game room.

Q.: OK, when the police first stopped you did you run because you had the handgun on you?

A.: That's the only reason I ran, he told me he wanted to talk about a . . . robbery,,, [sic] how that gonna look?

. . .

Q.: Did you throw the handgun away before the police finally arrested you?

A.: I threw it in some bushes.

At appellant's trial, the State provided evidence regarding a prior final felony conviction of appellant from June 2004. The jury found appellant guilty as charged in the indictment. Appellant pleaded "true" to an enhancement paragraph, and the trial court sentenced him to five years' confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal timely ensued.

II. LEGAL SUFFICIENCY OF THE EVIDENCE

A. Standard of Review and Applicable Law

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Rather, we examine all 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. Id. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (en banc). Although we consider all evidence presented at trial, we may not re weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000) (en banc). In other words, the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (en banc). Our review of the evidence includes both properly and improperly admitted evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination. Id. Appellant was charged with the offense of unlawful possession of a firearm by a felon. TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon Supp. 2008). To convict appellant, the State was required to prove beyond a reasonable doubt that appellant was previously convicted of a felony offense and possessed a firearm after that conviction and before the fifth anniversary of his release from confinement or from community supervision or parole, whichever was later. Id.; see also Hawkins v. State, 89 S.W.3d 674, 677 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd).

B. Analysis

Appellant has not challenged the sufficiency of the evidence establishing his prior felony conviction or the timing of his five-year anniversary from that conviction. He has only challenged the legal sufficiency of the evidence showing that he possessed a firearm. But, as noted above, appellant confessed to this aspect of the offense: he acknowledged that he had a .380 caliber handgun when he ran away from Chapa. In fact, he stated that the only reason he ran from the officer was because he knew he was not supposed to carry a gun. He further explained that he threw the gun into some bushes when he was running from Chapa. Finally, Chapa described seeing appellant throw an object into a bushy area and then recovered a .380 caliber handgun from that area. Viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of unlawful possession of a firearm by a felon. We therefore overrule appellant's issue.

III. CONCLUSION

Having determined that legally sufficient evidence supports appellant's conviction, we overrule his sole issue on appeal and affirm the trial court's judgment.