No. 05-07-01363-CR
Opinion issued March 12, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F07-00997-RH.
Before Justices MORRIS, WRIGHT, and MOSELEY. Opinion By Justice MORRIS.
JOSEPH B. MORRIS, Justice.
In this case, a jury convicted Nicholas Dewayne Franklin of unlawful possession of a firearm by a felon. In a single point of error, appellant contends the evidence is factually insufficient to support the jury's verdict. We affirm.
Factual Background
The narcotics division of the Dallas Police Department received complaints about possible drug activity at a house. Officer Willie Ford and an Officer Bishop went to the house with a confidential informant on March 17, 2006. While Ford and Bishop observed the suspect house in an unmarked vehicle, the informant purchased drugs at the front window. Ford saw appellant standing outside the house in the front driveway area. There were also two other people standing in the driveway area. On March 23, 2006, Bishop and the informant went to the suspect house again, where the informant purchased more drugs. After the second drug purchase, Bishop obtained a search warrant for the house. The warrant was executed on March 24, 2006. At that time, appellant was found alone in the house in a back bedroom with a loaded rifle. Ford testified he arrived at the house at 8:30 p.m. to provide surveillance until the entry team arrived. For forty-five minutes, Ford observed foot traffic to one of the front windows of the house. Individuals would walk up to the front window, stay there a few minutes, then walk away. Ford did not see anyone leave from inside the house. Ford stayed outside in an unmarked vehicle while other officers executed the search warrant. Detective Greg Garcia, a member of the entry team, testified he went inside the house in the "5th position." As team members entered the house, they continually yelled, "[P]olice." When Garcia entered the living room, he saw a handgun on a table, blankets or sheets covering all of the windows, and money strewn on the floor and couches. Garcia went down a hallway to a bedroom at the back of the house. Garcia saw appellant standing in the bedroom. He ordered appellant to get on the ground, and appellant complied. Garcia saw a nine-millimeter rifle on the floor near appellant. Garcia testified the rifle was technically a "longer barrel pistol" that was loaded with ammunition in the attached magazine and a round in the chamber. The rifle was within arm's reach of appellant. Garcia testified no one else was found inside the house. Appellant testified in his defense. He acknowledged he had previous felony convictions for possession of cocaine and unauthorized use of a motor vehicle. Appellant denied he lived at the suspect house and denied that the rifle found near him was his. According to appellant, one of his co-workers named "Marty" lived at the house with his girlfriend. Appellant had been to the house several times to "have a drink, or just hang out" and even helped Marty move into the house. Appellant claimed that on March 24, 2006, he went to the house to watch a Mavericks basketball game with Marty. Appellant arrived at about 3:00 p.m. Marty left to go to work, but appellant stayed inside the house. While waiting for Marty's return, three people came to the house looking for drugs. Appellant said it was not unusual for people to be looking for drugs in that neighborhood. Appellant told the people there were no drugs at the house. Appellant claimed he had never seen anyone selling drugs from Marty's house. By appellant's account, he was in the living room of the house when he heard a bang. As he went to investigate the noise, someone threw a "flash-bang thing" into the house that scared him. Appellant claimed he was standing in the hallway when police officers rushed into the house and ordered him to get on the floor. Appellant complied with the officers' demands. Appellant acknowledged that officers found a rifle in the back bedroom. He stated that he knew Marty had a rifle, but he did not know the rifle was in the back bedroom. Appellant claimed he did not go into the bedroom because the door was locked. Appellant testified the firearm found in the living room was a "BB gun" that belonged to Marty. He claimed the money on the living room floor was money he had earned at his job as a mechanic. Appellant said, "[t]he police took the money out my pocket when they drug me out of the house." He claimed the officers later returned the money to him. During cross-examination, appellant testified that he stayed at Marty's house because he wanted to watch the basketball game and he knew Marty would return. He claimed he sat in the living room and watched the game. According to appellant, the gun police found in the living room was not there when appellant was watching the game. Appellant claimed Garcia lied about finding appellant in the back bedroom and lied that the rifle was loaded. Appellant said he believed the officers "lied about everything" because they "staged the scene" and then took photographs of the scene to implicate him. A Mavericks game schedule that showed the team played on March 23, 2006 and March 25, 2006, but not on March 24, 2006, was admitted into evidence. Appellant then testified he misspoke about the date that the police came to Marty's house. He claimed the police entered the house on March 23, 2006 and he was booked into the jail on March 24, 2006. After the prosecutor showed appellant copies of the search warrant and book-in sheet from the jail, appellant acknowledged the search warrant recited it was issued at 1:30 p.m. on March 24, 2006, and the book-in sheet recited appellant's arrest date and time was March 24, 2006 at 8:30 p.m. Discussion
In his sole point of error on appeal, appellant contends the evidence against him is factually insufficient because nothing linked him to the firearm, he did not live at the house where the firearm was found, and he did not flee the premises or make any incriminating statements about the firearm. Appellant argues he presented credible testimony that shows he did not possess the firearm and was simply in the wrong place at the wrong time, and Garcia's testimony was insufficient to show appellant possessed the firearm. In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant was previously convicted of a felony offense and possessed a firearm at any location other than the premises at which he lived. See Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2008); see also Martinez v. State, 986 S.W.2d 779, 780 (Tex.App.-Dallas 1999, no pet.). Possession means actual care, custody, control, or management. See Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2008). In determining whether sufficient links between appellant and the firearm exist, we examine factors such as whether the firearm was in plain view, whether appellant owned the place where the firearm was found, whether he was in close proximity to the firearm and had ready access to it, whether he attempted to flee, whether his conduct indicated a consciousness of guilt, and whether he made incriminating statements. See Bates, 155 S.W.3d 212, 216-17 (Tex.App.-Dallas 2004, no pet.). No set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). It is the logical force of the evidence, and not the number of links, that supports a fact finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006); Taylor, 106 S.W.3d at 830. In appellant's case, there was conflicting evidence presented. It was the jury's function, however, to evaluate the credibility of the witnesses and to resolve any conflicts in the evidence presented. See Lancon, 253 S.W.3d at 705. We must afford due deference to the jury's determination. See Marshall, 210 S.W.3d at 625. Here, despite appellant's claims, police testimony showed appellant was found in the house's back bedroom within arm's reach of a loaded firearm. No other person was found inside the house. Viewing all the evidence under the proper standards, we conclude it is factually sufficient to support the conviction. We overrule appellant's sole point of error. We affirm the trial court's judgment.