Opinion
No. 11-18-00164-CR
07-16-2020
SANTIAGO RAYOS CASTILLO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court Ector County, Texas
Trial Court Cause No. A-16-1380-CR
MEMORANDUM OPINION
Appellant, Santiago Rayos Castillo, was indicted for the third-degree felony offense of unlawful possession of a firearm by a felon. The jury found Appellant guilty of that offense, and it assessed his punishment at confinement for four years. The jury also assessed a fine of $1,000. The trial court sentenced Appellant in accordance with the verdict of the jury. We affirm.
In his first issue on appeal, Appellant maintains that the evidence is insufficient to support the verdict because the State did not prove that he possessed a firearm. Appellant grounds this complaint upon his assertion that the State failed to introduce the subject pistol into evidence, failed to introduce a picture of the pistol, and failed to prove that the pistol was operational. As a part of his first issue on appeal, Appellant also contends that the evidence is insufficient because the State did not present the pistol, or a picture of it, to a particular witness so that the witness could opine on whether it was the pistol that the witness claimed that he purchased from Appellant. In his second issue on appeal, Appellant argues that "there is legally insufficient evidence to support a verdict of guilty through testimony that [Appellant], as a passenger in a vehicle, had care, custody or control of a firearm, and nothing more than fortuitous contact."
Although they worked in separate departments, Appellant and David Medrano were both employed by the same oilfield-related company at the time of the offense that is the subject of this appeal. Medrano testified that Appellant approached him and offered to sell him a .45 Beretta pistol. Medrano told Appellant that he was interested. They arranged to meet at Western Foods in West Odessa.
According to Medrano, when the meeting took place at Western Foods, there were others in the vehicle in which Appellant was riding; Appellant was seated in the passenger seat. Medrano went to the vehicle and talked to Appellant at the window. Appellant took the pistol off the console and handed it to Medrano. In return, Medrano handed Appellant either $250 or $275.
Sometime later, Medrano noticed some scratches on the pistol; a name had been scratched on it. Medrano did not "feel right about it." Medrano contacted Norman Bennett in Crane. Bennett was a district manager for the company where Medrano worked. Bennett was also a former police officer.
Roy Celaya, a detective with the Odessa Police Department, testified. Apparently, after Medrano's conversation with Bennett, someone in the Crane Police Department discovered that the pistol that Medrano had purchased from Appellant had been stolen in a November 2012 residential burglary in Odessa. The Crane Police Department released the pistol to the rightful owner, and it was never taken into evidence. Subsequently, Detective Celaya was assigned to the case.
Detective Celaya contacted Medrano and spoke with him "a few times." Medrano told Detective Celaya that the firearm was a .45 Beretta handgun and that Appellant had handed it to him.
Initial attempts to contact Appellant personally were unsuccessful. Detective Celaya left a business card at Appellant's address, and Appellant contacted him later. Detective Celaya testified that Appellant told him that he "had basically set up the transaction for his cousin," Fernando Chavez. Appellant denied that he ever touched the gun. Appellant did, however, tell Detective Celaya that the meeting was to take place at Western Foods.
Appellant testified. He said that he had never been to Western Foods, that he did not own or possess a .45 Beretta pistol, that he had never seen the gun, and that he did not take any money from Medrano. Appellant's position is basically that he was merely a facilitator in this transaction. He put Medrano and Chavez together and did not know what happened after that. Contrary to Detective Celaya's testimony about his conversation with Appellant, Appellant testified that Medrano and Chavez arranged to do the transaction in the company yard. At trial, Appellant theorized that they made up the story about his involvement to avoid getting fired for having a firearm on company property.
Section 46.04(a) of the Texas Penal Code provides:
A person who has been convicted of a felony commits an offense if he possesses a firearm:
TEX. PENAL CODE ANN. § 46.04 (West Supp. 2019).(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; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
Appellant's status as a convicted felon is not in dispute.
A firearm is "any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." Id. § 46.01(3). A handgun is "any firearm that is designed, made, or adapted to be fired with one hand." Id. § 46.01(5).
We will first address Appellant's claim that the State did not prove that the pistol that he possessed was a firearm because the State failed to introduce the pistol into evidence, failed to introduce a picture of the firearm, and failed to prove that the pistol was operational.
To the extent that Appellant focuses his argument on the State's failure to prove the operability of the firearm, it is not necessary for a device to be operable at the time of the offense for it to be considered a firearm. See, e.g., Walker v. State, 543 S.W.2d 634, 637 (Tex. Crim. App. 1976) (an automatic pistol that was missing the clip and firing pin at the time of the offense constituted a firearm); Aylesworth v. State, No. 03-12-00050-CR, 2013 WL 3929107, at *3-4 (Tex. App.—Austin July 24, 2013, no pet.) (mem. op., not designated for publication) (a firearm need not be operable or capable of firing at the time of possession); Hutchings v. State, 333 S.W.3d 917, 922 (Tex. App.—Texarkana 2011, pet. ref'd) (not necessary for the State to prove that firearm is operable); Bollinger v. State, 224 S.W.3d 768, 775 (Tex. App.—Eastland 2007, pet. ref'd) (State not required to prove that firearms were operable); Grantham v. State, 116 S.W.3d 136, 144 (Tex. App.—Tyler 2003, pet. ref'd) (State not required to prove that weapons were capable of being fired); Thomas v. State, 36 S.W.3d 709, 711 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) (Section 46.01(3) does not require that a firearm be capable of firing at the time of the offense). Appellant's argument as to proof of operability is not well-taken.
Insofar as Appellant urges that the evidence is insufficient because the State introduced neither the firearm nor a picture of it, there is no requirement that the State do so. In Gomez, an aggravated robbery case, the State alleged that Gomez exhibited "a deadly weapon, namely a firearm." Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985). There, although the State was not required to allege that the deadly weapon was a firearm, because it had so alleged, the court held that the State must prove that the deadly weapon was a firearm. Id. No weapon was identified as being the same as or like the one that Gomez exhibited during the offense. Id. However, in their testimony, witnesses used descriptive words such as "gun" and "revolver" to describe the weapon. The court held that that testimony was sufficient. Id.
Similarly, it is not necessary for the State to have produced a firearm before we may sustain a conviction for unlawful possession of a firearm by a felon. Tapps v. State, 257 S.W.3d 438, 445-46 (Tex. App.—Austin 2008), aff'd, 294 S.W.3d 175 (Tex. Crim. App. 2009). In this case, various witnesses referred to the "gun," "pistol," "firearm," "45 Beretta," and "a Beretta, 45 Caliber handgun." A "factfinder may draw reasonable inferences and make reasonable deductions from the evidence as presented to it within the context of the crime." Edwards v. State, 10 S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 1999), pet. dism'd, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002). We hold that the testimony is sufficient to support the jury's finding that that which was described as the "gun," "pistol," "firearm," "45 Beretta," and "Beretta, 45 Caliber handgun" is a firearm as defined in Section 46.01(3) of the Texas Penal Code. See PENAL § 46.01(3). We overrule Appellant's first issue on appeal.
In his second issue on appeal, Appellant takes the position that the evidence is insufficient to prove that he possessed (had care, custody, and control of) "a firearm, and nothing more than fortuitous contact."
Possession is defined in the Texas Penal Code as "actual care, custody, control, or management." Id. § 1.07(a)(39). A person commits an offense only if he voluntarily possesses the prohibited item. Id. § 6.01(a) (West 2011). Possession is a voluntary act 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); Grantham, 116 S.W.3d at 143.
In cases that involve unlawful possession of a firearm by a felon, we analyze the sufficiency of the evidence as to possession under the rules used to determine the sufficiency of the evidence in cases that involve possession of a controlled substance. Young v. State, 752 S.W.2d 137, 140 (Tex. App.—Dallas 1988, pet. ref'd). The State must establish that the accused (1) exercised care, custody, or control of the firearm and (2) was conscious of his connection with it. See Grantham, 116 S.W.3d at 143. The State's evidence, whether direct or circumstantial, must establish that the accused's connection with the firearm was more than fortuitous. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
Medrano testified that Appellant approached him and offered to sell him a pistol, a .45 Beretta. According to Medrano, they agreed to meet at Western Foods. When at Western Foods, Medrano went to the vehicle in which Appellant was a passenger; there were others in the vehicle also. Medrano talked to Appellant through the window of the vehicle. Appellant took the gun off the console and handed it to Medrano. Medrano handed Appellant the money for the gun.
During his investigation, Detective Celaya talked to Medrano. Medrano confirmed that Appellant was in possession of and handed him a .45 Beretta handgun.
As we have said earlier, Appellant denied that he ever saw or possessed the gun, got any money for it, or met Medrano at Western Foods. Although Appellant testified at trial that he did not know anything about where Chavez and Medrano met to complete the transaction, he had earlier told Detective Celaya that he had arranged for Chavez and Medrano to meet at Western Foods.
We review the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight that their testimony is to be afforded. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Zuniga, 551 S.W.3d at 732. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
Under the standards of review that we have outlined, the evidence is sufficient to support the jury's finding that Appellant, a felon, unlawfully possessed a firearm. We overrule Appellant's second issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE July 16, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.