Opinion
No. 05-03-01525-CR
Opinion Filed November 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-48347-RP. Affirmed.
Before Justices MOSELEY, FITZGERALD, and FRANCIS.
OPINION
A jury convicted Ronald Denweed of being a felon in possession of a firearm and assessed punishment, enhanced by two previous felony convictions, at sixty years in prison. In five issues, appellant complains about the legal and factual sufficiency of the evidence, denial of his motion for continuance, use of a 1989 murder conviction to enhance punishment, and ineffective assistance of counsel. We affirm. Field Stone Crossing Apartments in Oak Cliff was under new ownership, and management was working to rid the complex of drugs and violence. Thomas Wood, director of operations, said he had received numerous complaints about a man driving around the complex in a green Cadillac. In February 2003, the man in the green Cadillac was at the complex, and Wood again received complaints. Wood called the police, who attempted to stop the Cadillac to give the occupants a trespass warning. While the police followed the car through the complex parking lot, two men jumped out of the Cadillac's back seat and ran. The driver of the Cadillac, identified as appellant, continued for about fifty feet before slowly pulling into a parking spot. Once the car stopped, Dallas police officer Mark Rodgers approached appellant at the driver's side window and asked him to get out of the vehicle. Appellant was "moving around quite a bit." Suddenly, appellant pulled a gun from under his thigh, and Officer Rodgers pulled his weapon. Appellant acted "like he didn't know what to do next," and Officer Rodgers took the gun from appellant's hand. Apartment operations director Wood, who was at the scene, heard the officers yelling "don't do it." Wood saw the officers draw their weapons and could see "some sort of struggle." Once the police took the gun from appellant, he refused to get out of the car. Officers pulled appellant from the car and arrested him. Appellant was not a resident of the apartment complex. In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Appellant argues the State failed to prove appellant ever "possessed" the firearm. The standards for reviewing the legal and factual sufficiency of the evidence are well established. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840786, *6 (Tex.Crim.App. Apr. 21, 2004) (factual sufficiency). "'Possession' means actual care, custody, control, or management." Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2004-05). A person commits a possession offense only if he voluntarily possesses the prohibited item. See id. § 6.01(a) (Vernon 2003); Bates v. State, No. 05 03-00195-CR, 2004 WL 51840, *3 (Tex.App.-Dallas Jan. 13, 2004, no pet.). "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. § 6.10(b). In cases involving unlawful possession of a firearm by a felon, we analyze the sufficiency of the evidence under the rules adopted for determining the sufficiency of the evidence in cases of unlawful possession of a controlled substance. Bates, 2004 WL 51840, *3. Thus, to prove its case, the State had to establish that the accused (1) exercised actual care, control, or custody of the firearm, (2) was conscious of his connection with it, and (3) possessed the firearm knowingly or intentionally. Id. The State's evidence, which may be either direct or circumstantial, must establish the accused's connection with the firearm was more than fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Bates, 2004 WL 51840, *3. Appellant argues the evidence in this case showed that appellant "momentarily had a firearm in his hand" and his possession was "merely 'fortuitous.'" We disagree. The evidence showed that police stopped appellant's car and appellant pulled a gun from under his thigh and held it in his right hand until Officer Rodgers took it from him; thus, there was direct evidence of appellant's possession. Appellant argues he was simply "holding" the pistol but never "gripped" the gun. The law does not require that appellant "grip" the gun or hold it in any particular way to possess it. Considering the evidence under the appropriate standards of review, we conclude the evidence was legally and factually sufficient to establish, beyond a reasonable doubt, that appellant possessed a firearm. We resolve issues one and two against appellant. In his third issue, appellant contends the trial court reversibly erred in failing to grant his motion for continuance to allow his court-appointed attorney additional time to prepare for trial. Before jury selection in this case, appellant's court-appointed trial counsel presented a motion to continue. In the motion, trial counsel asserted that appellant, under advice from an unknown attorney, had refused to speak to him about the case. Trial counsel further asserted that "it is only now that [appellant] realizes his mistake" and asked for a continuance so that appellant could "properly communicate with his attorney." Appellant was sworn in and testified that his wife had hired another attorney to represent him. Appellant testified his wife had talked to that attorney and "was trying to get him put on for my bond lawyer and we paid the fee for him to represent me." Appellant said he had talked to the bond lawyer on three occasions and also said he did not know he was scheduled to go to trial. Trial counsel, however, told the court he had informed appellant of the trial date. The judge attempted to contact appellant's "bond lawyer" but was unsuccessful. In denying the motion to continue, the judge stated that the bond lawyer had perhaps been hired to reduce appellant's bond but there was nothing in the record to show he was the attorney on this case. At the conclusion of the evidence at guilt-innocence, appellant asked the trial court to reconsider its decision and offered as evidence a copy of a letter from the bond lawyer and a contract. In the letter, the bond lawyer acknowledged the trial date but said he would seek a continuance. The judge stated that there was nothing in the court's file to show the bond lawyer represented appellant or that he filed a motion for continuance. The prosecutor also stated that she had no communications with the bond lawyer. She did, however, discuss the case with court-appointed trial counsel "well in advance of the trial date." Trial counsel acknowledged that he had no difficulty communicating with appellant during trial, only before. Appellant again raised the issue of continuance in a motion for new trial. On appeal, appellant argues the continuance would have allowed his court-appointed attorney to develop and offer (1) appellant's testimony, at guilt-innocence, that he never possessed the gun and (2) his brother's and wife's testimony to mitigate his sentence at punishment. Granting or denying a motion for continuance is within the discretion of the trial court and will not be reversed on appeal unless it is shown that the court abused it discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996) (per curiam). To establish an abuse of discretion, the defendant must show he was actually prejudiced by the denial of the motion. Id. Given the record before us, we cannot conclude the trial court abused its discretion in denying appellant's motion for continuance. First, we stress that at the time the trial court made its initial ruling to deny the motion, there was nothing to support appellant's assertion that he had retained the bond lawyer to represent him at trial. The bond lawyer had not notified the court that he was representing appellant, and the judge's attempts to contact the attorney were unsuccessful. Appellant referred to the attorney as his "bond lawyer," and the trial court could have reasonably concluded that the attorney was hired to obtain appellant's release from jail. The evidence before the trial court was that appellant made a conscious decision to not discuss his case with his court-appointed trial counsel, despite counsel's repeated attempts to talk to appellant and the fact appellant knew the case was set for trial. Although appellant produced a contract with the other attorney, this was not until after all guilt-innocence evidence had been presented and the case was ready to go to the jury. Further, appellant filed a motion for new trial, but offered no evidence to explain appellant's relationship with the other attorney. As for the alleged prejudice, appellant first asserts that a continuance would have allowed his court-appointed counsel time to prepare him to testify at guilt-innocence, which appellant ultimately did not do. The record shows appellant testified at punishment only a couple of hours after the defense presented its case on guilt-innocence. Thus, the record does not support the assertion that court-appointed counsel had inadequate time to develop appellant's testimony, particularly as appellant was apparently adequately prepared to testify later that same day at punishment. At punishment, appellant testified he did not know about the gun until the police recovered it from underneath the car seat. He argues this was crucial evidence that the jury should have had at guilt-innocence. At guilt-innocence, appellant called a defense witness who was at the apartment complex on the day he was arrested. The woman's testimony suggested that appellant did not have a gun, and the jury disbelieved her. We also observe that appellant's prior convictions, including murder, could have been used to impeach appellant had he testified during the guilt-innocence portion of trial. They were admitted into evidence at punishment. Appellant next asserts the continuance would have allowed him time to develop the testimony of his brother and wife to mitigate his punishment. However, there is nothing in the record to show what these two potential witnesses would have testified to as mitigating circumstances. Considering appellant's arguments and the record, we conclude the trial court did not abuse its discretion in denying the motion for continuance. We resolve the third issue against appellant. In his fourth issue, appellant argues he is entitled to a new punishment hearing because his 1989 murder conviction was used twice to enhance punishment in this case to a first-degree felony. We disagree. The record shows the State used a 1999 cocaine conviction as its jurisdictional allegation and a 1989 murder conviction as one of the punishment enhancement allegations. The record also shows the State used the 1989 murder conviction to enhance punishment in the 1999 cocaine case. From these facts, appellant now asserts the murder conviction has been used twice in this case to enhance punishment. To the contrary, the murder conviction was used once in this case — to enhance punishment. "The use of a conviction for enhancement purposes shall not preclude the subsequent use of such convictions for enhancement purposes." Tex. Pen. Code Ann. § 12.46 (Vernon 2003). That the murder conviction was used to enhance punishment in the earlier cocaine case did not preclude its use to enhance punishment in this case. We reject the fourth issue. In his fifth issue, appellant argues he was denied effective assistance of counsel when trial counsel failed to object that the murder conviction was being used twice to enhance punishment. We have previously rejected appellant's substantive argument; thus, appellant has not shown counsel rendered deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). The fifth issue is without merit. We affirm the trial court's judgment.