No. 13-03-238-CR
Memorandum Opinion delivered and Filed: August 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 338th District Court of Harris County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
ROGELIO VALDEZ, Chief Justice.
After a jury trial, appellant, Byron DeWayne Clark, was convicted of possession of a firearm by a felon. The jury assessed punishment at ten years imprisonment in the Texas Department of Criminal Justice, Institutional Division. We conclude this appeal is frivolous and without merit. We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. II. ANDERS BRIEF
On October 27, 2003, appellant's counsel filed a brief with this Court in which he concluded the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). In his brief, counsel states: (1) he diligently reviewed the appellate record and the applicable law; (2) he found no grounds of error on which an appeal could be based; (3) in his opinion, the appeal is without merit and is frivolous; and (4) he served a copy of this brief on appellant with a letter informing appellant of his right to examine the entire appellate record and to file a pro se brief on his own behalf. In counsel's brief, counsel reviews the indictment, the evidence introduced at trial, and objections made by trial counsel during the underlying proceedings. With citations to the record and legal precedent, counsel explains why he concludes the appeal is without merit. The brief meets the requirements of Anders as it presents a professional evaluation showing why there is no basis to advance an appeal. Anders, 386 U.S. at 744-45; Stafford v. State, 813 S.W.2d 503, 509-10, 510 n. 3 (Tex.Crim.App. 1991); High v. State, 573 S.W.2d 807, 812-13 (Tex.Crim.App. [Panel Op.] 1978). III. PRO SE BRIEFS
Appellant filed two pro se briefs, in which he raises the following issues: (1) appellant was improperly indicted under a statute that did not exist at the time he was convicted of the predicate felony; (2) appellant was not provided with notice of the prior convictions the State intended to use at trial; (3) the evidence was insufficient to sustain the conviction; (4-5) appellate counsel's Anders brief does not comply with the requirements of the law; (6) the trial court erred in not considering a psychologist's evaluation in assessing appellant's punishment; and (7) appellant did not waive error when his trial counsel stated he had no further objections to the charge. A. Indictment
In his first issue, appellant contends he was improperly indicted under section 46.04 of the penal code, resulting in retroactive application of the statute. According to appellant, because the predicate felony conviction predated section 46.04 as it currently exists, he should have been indicted under former 46.05 of the penal code. He further alleges that the indictment was defective because it failed to allege that the prior felony conviction involved violence or the threat of violence as required under former section 46.05. Former section 46.05 of the penal code stated in pertinent part: "A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives." Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 46.05, 1973 Tex. Gen. Laws 883, 964. In 1993, the legislature moved the description of this offense to section 46.04 and amended the statute to read: 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; or
(2) after the period described in Subdivision (1), at any location other than the premises at which the person lives.
Id. amended by Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, sec. 46.04, 1993 Tex. Gen. Laws 3586, 3691. The court of criminal appeals rejected an argument identical to appellant's in Mason v. State, 980 S.W.2d 635 (Tex.Crim.App. 1998). The court held, in amending former section 46.05, the legislature intended for only a defendant's status as a felon to be an element of 46.04, not the date of the felony conviction. Id. at 641. Moreover, in amending the statute, the legislature also intended to encompass all felons, not simply those convicted of a felony involving an act of violence or threatened violence to a person or property. Id. at 639. The court concluded the accused in that case was properly indicted under section 46.04 even though the predicate felony occurred before the 1993 amendment and the indictment did not allege a predicate felony involving an act of violence or threatened violence to a person or property. Id. at 641. The indictment in this case alleged appellant possessed a firearm on March 1, 2002, after having been convicted of delivery of a controlled substance on June 21, 1991. The indictment also alleged appellant's possession of a firearm occurred before the fifth anniversary of appellant's release from supervision under parole. Under Mason, appellant was properly indicted under section 46.04 of the penal code. Accordingly, appellant's first issue is overruled. B. Notice of Prior Convictions
In his second issue, appellant contends he did not receive notice of the prior convictions the State intended to use at trial. The record does not substantiate this argument. On September 24, 2002, the State filed in the trial court a notice of its intent to use evidence of prior convictions and extraneous conduct during the trial. A copy of this notice was sent to appellant's former trial attorney. That same day, appellant was appointed a new attorney who did not personally receive a copy of the notice. At trial, the latter attorney contended he did not receive notice of the prior convictions and extraneous conduct from the State. The State responded it had previously filed its notice and the notice was contained in the trial court's file. Appellant's counsel admitted he had access to and reviewed the trial court's file prior to trial. The trial court overruled the objection. Under these facts, we agree with the trial court that appellant was given notice of the State's intent to use evidence of his prior convictions and extraneous offenses. Accordingly, we overrule appellant's second issue. C. Sufficiency of the Evidence
In his third issue, appellant contends the evidence is legally and factually insufficient to support the conviction. Specifically, appellant contends the State did not sufficiently prove appellant possessed the firearm because his fingerprints were not found on the gun. In considering the legal sufficiency of the evidence, we must examine the evidence presented 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 present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App. 2003). We are also required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Id. We measure both the legal and factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Wheaton v. State, 129 S.W.3d 267, 271-72 (Tex. App.-Corpus Christi 2004, no pet.); see Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240. We review the sufficiency of the evidence in cases involving possession of a firearm by a felon under the rules adopted for determining the sufficiency of the evidence in cases of possession of a controlled substance. Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Therefore, the State must prove that the appellant knew of the weapon's existence and that he exercised actual care, custody, control, or management over it. Id. at 38. When an appellant is not in exclusive control of the place where the weapon is found, we cannot conclude the appellant had knowledge of or control over the weapon unless there are independent facts and circumstances affirmatively linking the appellant to the weapon. Id.; cf. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986) (applying this rule in possession-of-controlled-substance case). Factors that may establish affirmative links include, but are not limited to, whether the weapon was accessible to the appellant and whether the conduct of the appellant indicated a consciousness of guilt. See Gill v. State, 57 S.W.3d 540, 544-45 (Tex. App.-Waco 2001, no pet.). Here, the State introduced sufficient evidence affirmatively linking appellant to the firearm. Police officer Antonio Nichols testified that, as he arrived at the scene of a shooting, he saw appellant recklessly driving his truck away from the scene. Nichols pursued appellant by car until appellant pulled over and stepped out of his truck. Nichols ordered appellant to the ground, but appellant refused. Appellant said "shoot me" and took off his jacket. Nichols saw what he believed was the handle of a weapon sticking out of the left side of appellant's pants. When Nichols ordered appellant to drop the weapon, appellant started running, and a chase ensued. Police officers eventually apprehended appellant and found a firearm ten feet away from him. A videotape introduced by the State corroborated much of Nichols' testimony, although the tape does not show whether or not appellant was carrying a weapon tucked into his pants. Appellant testified he did not have a gun in his possession on the night in question. He also stated he fled because he feared for his life. The crux of appellant's argument is that the proof of the crime was deficient because his fingerprints were not found on the firearm. However, the State introduced the testimony of Deputy J.C. Dalrymple of the Harris County Sheriff's Department. Dalrymple testified it is not unusual to find no fingerprints on a gun. He also testified it was possible under certain circumstances to touch an object but leave no fingerprints. A person could leave no print on an object he touched if his hand was covered, dry, or very wet. Taking the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the elements of the offense proven beyond a reasonable doubt. We also conclude proof of guilt is not so obviously weak as to undermine confidence in the verdict, nor is proof of guilt greatly outweighed by the contrary proof. Accordingly, we overrule appellant's third issue. D. Adequacy of Anders Brief
In appellant's fourth and fifth issues, appellant contends his appellate counsel's Anders brief is inadequate under the law. He asks us to quash the brief and abate the appeal. As explained above, we reviewed counsel's brief and find it meets the standards announced in Anders. Appellant's fourth and fifth issues are overruled, and we deny appellant's request to quash the brief and abate the appeal. E. Punishment
In appellant's sixth issue, appellant contends the court refused to consider a psychiatric evaluation performed by Dr. Edward P. Friedman in sentencing appellant. Dr. Friedman performed the evaluation by order of the court to determine whether appellant was sane and competent to stand trial. In his reports, Dr. Friedman concluded appellant suffered from psychosis secondary to drug abuse but was sane and competent to stand trial. Appellant believes, based on Dr. Friedman's reports, he should have been sentenced to attend a rehabilitation center instead of prison. Dr. Friedman's evaluations were not introduced into evidence during either phase of the trial. Appellant cites to no authority, nor do we find any, requiring an accused to be sentenced to drug rehabilitation instead of imprisonment based on a history of drug abuse documented in reports never submitted into evidence. Accordingly, we overrule appellant's sixth issue. F. Objections to the Charge
In his final issue, appellant contends he did not waive error when his trial counsel stated that counsel had no further objections to the charge. However, appellant identifies no error in the charge, nor do we find any. Accordingly, we overrule appellant's seventh issue. IV. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988); Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). We have reviewed the entire record and find that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court. V. APPELLATE COUNSEL
We may grant appellate counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n. 1 (Tex.Crim.App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). Appellate counsel has not filed a motion to withdraw in this case. If he wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion. We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).