Opinion
No. 09-10-00053-CR
Submitted on November 8, 2010.
Opinion Delivered November 24, 2010. DO NOT PUBLISH.
On Appeal from the 258th District Court, Polk County, Texas, Trial Cause No. 21043.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
James Earl Kelley appeals his conviction for unlawful possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a)(1) (West Supp. 2010). Kelley's sole issue on appeal challenges the legal sufficiency of the evidence supporting his conviction. Because we find the evidence sufficient to support the conviction, we affirm the trial court's judgment. Officer Randy Turner with the Polk County Sheriff's Department responded to a call to assist the Livingston Police Department. He was dispatched to the scene of a "large disturbance" in the area of North Houston and Mimosa. As he approached the scene he saw a red Pontiac four-door vehicle he identified as a suspect vehicle involved in the disturbance. He made a traffic stop and because of a concern for his safety, he placed all three occupants of the vehicle in hand restraints. The driver gave him consent to search the vehicle. While searching the vehicle, Turner located "a gold colored .40 caliber Smith and Wesson round" in the rear seat on the driver's side. Although appellant was not one of the vehicle's occupants, the vehicle was registered to him. Officer Marty Drake with the Livingston Police Department testified that all units were dispatched to Mimosa Street. While in route to the scene, dispatch re-directed him to travel southbound on "59" to locate a "four-door, blue, older model vehicle." A vehicle matching that description passed him. After backup arrived, he made a traffic stop. The officers drew their weapons because of concerns for their safety, and the driver was instructed to step out of the vehicle. The driver got out of the vehicle and after he was restrained, another officer instructed the passenger, appellant, to get out of the vehicle. Appellant was restrained. Drake located a bullet between the door and the seat. He observed what he believed to be a Glock .40 caliber pistol and two clips in plain view on the driver's side floorboard of the vehicle. Drake testified that a front seat passenger of the vehicle would have been able to see the weapon. Matt Parrish, a lieutenant with the Livingston Police Department, also responded, and when he arrived, he noticed a red vehicle that had been pulled over by several sheriff's deputies. He continued to an apartment complex on Mimosa from which a 9-1-1 call had been made. People at the complex were visibly upset. He returned to where the sheriff's deputies had pulled over the red vehicle. He determined from the license plate on that vehicle that it was registered to appellant. Turner hnanded Parrish a bullet that had been found in the red vehicle. After a few minutes, Parrish responded to a call from Officer Marty Drake for assistance at another scene. When he arrived at the next scene, Parrish observed that Drake and D.P.S. troopers had a couple of subjects restrained. Parrish was handed a Glock .40 caliber pistol, two clips, and some bullets from the pistol. The bullet obtained from the red vehicle, registered to appellant, was the same caliber as the weapon handed to him at the scene where the blue car had been pulled over. The pistol had ammunition with it that matched the bullet retrieved from the red car. Mark Jones, an investigator with the Polk County District Attorney's Office, testified that the set of fingerprints taken prior to trial matched the fingerprint on State's Exhibit 2, which was a 2002 Harris County Judgment of Conviction for James Earl Kelley for felony possession of a controlled substance. The judgment was admitted into evidence. The trial court found Kelley guilty of unlawful possession of a firearm by a felon and sentenced him to five years of confinement. On appeal, Kelley argues the evidence is legally insufficient to support the conviction. When examining the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.E.2d 560 (1979)). If a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, then the evidence is legally sufficient. Id. The State was required to prove beyond a reasonable doubt that Kelley, a felon, was in unlawful possession of a firearm. See Tex. Penal Code Ann. § 46.04(a). To establish the offense of unlawful possession of a firearm by a felon, the State must show that the defendant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of the person's release from confinement. Id. Kelley does not dispute that he had a prior felony conviction. Kelley challenges only the evidence that he possessed a firearm. In cases involving the possession of an unlawful object or substance, the State must prove that the accused knowingly possessed the contraband in question. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Harris v. State, 994 S.W.2d 927, 933 (Tex. App.-Waco 1999, pet. ref'd). The Texas Penal Code defines possession as "actual care, custody, control, or management." Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2010). A person commits a possession offense if he voluntarily possesses the prohibited item. See id. § 6.01(a) (West 2003). "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) (West 2003). The State's evidence, which may be either direct or circumstantial, must establish the defendant's connection with the firearm was more than just fortuitous. See Brown, 911 S.W.2d at 747. 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. Young v. State, 752 S.W.2d 137, 140 (Tex. App.-Dallas 1988, pet. ref'd). If the firearm is not found on the defendant's person or is not in the exclusive possession of the defendant, the evidence must affirmatively link the accused to the firearm. Davis v. State, 93 S.W.3d 664, 667 (Tex. App.-Texarkana 2002, pet. ref'd); see also Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.-Beaumont 1996, no pet.); Watson v. State, 861 S.W.2d 410, 414-15 (Tex. App.-Beaumont 1993, pet. ref'd). The number of linking factors is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the defendant to the firearm. See Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.-Tyler 1995, pet. ref'd). An officer found the firearm in plain view on the driver's side floorboard of the vehicle in which appellant was a passenger. Drake explained that the firearm was visible from the passenger's seat. Appellant was in the vehicle alone after the driver left the vehicle and while the driver was being restrained. Ammunition with the firearm near appellant matched the ammunition found in the vehicle registered to appellant. The firearm was the same caliber as the ammunition found in his vehicle. Both his vehicle and the vehicle he was in with the gun were seen leaving the scene of the disturbance. A rational fact finder could find beyond a reasonable doubt that appellant had possession of the firearm. The evidence is sufficient to support appellant's conviction. We overrule Kelley's sole issue on appeal. We affirm the trial court's judgment. AFFIRMED.