No. 05-07-01615-CR
Opinion Filed March 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F06-71624-Y.
Before Justices RICHTER, LANG, and MURPHY. Opinion By Justice LANG.
DOUGLAS S. LANG, Justice.
Torey Demarcus Shelton appeals the trial court's judgment convicting him of unlawful possession of a firearm by a felon, enhanced by two prior convictions. The jury found Shelton guilty, the two enhancements true, and assessed his punishment at forty years of imprisonment. Shelton raises three issues on appeal arguing: (1) the evidence is legally insufficient to establish he was the person convicted of the offense alleged in the first enhancement paragraph; (2) the evidence is factually insufficient to establish he was the person convicted of the offense alleged in the first enhancement paragraph; and (3) the evidence was factually insufficient to support his conviction. We conclude the evidence is legally and factually sufficient to establish Shelton was the person convicted of the offense alleged in the first enhancement paragraph and factually sufficient to support Shelton's conviction. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Elvira Robledo woke when she heard a television playing loudly and arguing. She looked through the peephole of her apartment door and saw Shelton standing outside her door and waiving a gun around. Shelton and his girlfriend, Nikki Wilson, lived in the apartment with their children across the hall from Robledo's apartment. The couple were arguing and Robledo heard Nikki Wilson, who was standing in the doorway, tell Shelton to get inside their apartment before someone called the police. Shelton pointed the gun at the "washateria" and fired a shot. Then, he went back inside the apartment. Lester Wilson, Nikki Wilson's brother, lived in the apartment upstairs with his girlfriend. He heard a "boom" and screaming that sounded like his sister. Lester Wilson got dressed, went downstairs and beat on his sister's apartment door, but there was no answer. He returned to his apartment and could hear talking in the apartment below so he went back to his sister's apartment. While he was beating on the door a second time, he heard a gunshot. He pounded on the door harder than before and heard his sister scream "he won't let me open the door." Then, Shelton opened the door and Lester Wilson saw he was holding a black .45 caliber gun at his side. While Lester Wilson went to help his sister and her children, Shelton left the apartment. Robledo had stepped outside of her door and was standing in the breezeway when she heard another shot come from inside the apartment across the hall. Robledo saw Shelton, who was carrying a gun, run upstairs to Lester Wilson's apartment, but she heard Lester Wilson's girlfriend tell Shelton she did not want anything to do with him. Then, Robledo saw Shelton run to the apartment where Brian Leester lived with his girlfriend and son. She saw that the gun was still in Shelton's hand. While at Leester's apartment, Shelton told Leester he had been in an argument with Nikki Wilson. While Lester Wilson was helping his sister and her children leave the apartment, Nikki Wilson told her brother that Shelton shot down the hallway and showed him the bullet hole that went through the curtains, the blinds, and the window in her daughter's room, saying "Look what he did." Lester Wilson saw Robledo in the breezeway and used her telephone to call the police. After the police arrived, they went to Leester's apartment and knocked on the door. Leester saw it was the police through the peephole and opened the door as Shelton told him not to do so. When Leester opened the door, Shelton went to the back of the apartment. The police called for Shelton to come out of the apartment, but Shelton did not answer them. After approximately fifteen to twenty minutes, Shelton left Leester's apartment. After obtaining Leester's consent, the police searched his apartment and found, hidden in the ceiling panels of the hallway, one .45 caliber semiautomatic gun with one live bullet in the chamber. Also, the police found one .45 caliber automatic cartridge casing in a bedroom of Nikki Wilson's apartment and another such cartridge in the breezeway between Nikki Wilson's and Robledo's apartments. In addition, the police found a bullet hole in the bedroom window of Nikki Wilson's apartment. Shelton was indicted for the offense of unlawful possession of a firearm, enhanced by two prior convictions. After a trial, the jury found Shelton guilty, the two enhancements true, and assessed his punishment at forty years of imprisonment. II. LEGAL AND FACTUAL SUFFICIENCY OF EVIDENCE TO SUPPORT ENHANCEMENT
In issues one and two, Shelton argues the evidence is legally and factually insufficient to establish he was the person convicted of the offense alleged in the first enhancement paragraph. The State responds the original reporter's record was incorrect and the supplemental clerk's record contains the correct exhibit. The first enhancement paragraph alleged Shelton was convicted of unlawful possession of a firearm by a felon in cause no. F01-56123 in the 292nd Judicial District Court, Dallas County, Texas. Shelton argues the police officer testified Shelton's fingerprints were the same as those in State's exhibit nos. 24-27 and the prosecutor stated State's exhibit no. 26 was the judgment in cause no. F01-56123. However, the reporter's record shows State's exhibit no. 26 is a judgment in cause no. F03-15216 and State's exhibit nos. 24-27 do not contain the judgment in cause no. F01-56123. Instead, the documents relating to cause no. F01-56123 were contained in State's exhibit no. 28 and there was no evidence establishing Shelton was the person who committed that offense. The State filed a motion to correct the reporter's record. This Court granted the motion and ordered the trial court to conduct a hearing to determine whether the reporter's record accurately reflected the sentencing proceedings. On September 12, 2008, the trial court signed an order containing its findings that: (1) the court reporter filed a supplemental record that contains an accurate copy of State's exhibit no. 26, as evidenced by the exhibit sticker; (2) the court reporter for the proceedings tendered to the State a corrected version of page eight of volume six of the reporter's record, which correctly identifies the trial court number on State's exhibit no. 26 as the judgement in cause no. F01-56123; (3) a copy of the corrected page is contained in the supplemental clerk's record, containing the trial court's findings; and (4) Shelton's attorney agreed to the supplemental record. On September 19, 2008, this Court adopted the trial court's findings. Shelton has not withdrawn his first and second issues. However, after reviewing the supplemental reporter's record, State's exhibit no. 26 contains the judgment in cause no. F01-56123. Accordingly, we conclude the evidence is legally and factually sufficient to establish he was the person convicted of the offense alleged in the first enhancement paragraph. Issues one and two are decided against Shelton. III. FACTUAL SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION
In issue three, Shelton argues the evidence was factually insufficient to support his conviction. Shelton argues the evidence was insufficient to link him to the gun because Robledo and Lester Wilson were unreliable witnesses and their testimony was contradicted by Leester's testimony. The State responds there is sufficient evidence to link Shelton to the gun and Shelton is asking the appellate court to substitute its judgment for the jury's determination of credibility and demeanor. A. Standard of Review
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied 128 S.Ct. 87 (2007). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee v. State, 186 S.W.3d 649, 655 (Tex.App.-Dallas 2006, pet. ref'd). An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge. Lancon, 253 S.W.3d at 706. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. B. Applicable Law
To establish the offense of unlawful possession of a firearm by a felon, the State must show the defendant was previously convicted of a felony offense, and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or from community supervision, parole, or mandatory supervision, whichever date is later. Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2008); Smith v. State, 176 S.W.3d 907, 915-16 (Tex.App.-Dallas 2005, pet. ref'd). "Possession" means actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39); Smith, 176 S.W.3d at 916. A person commits a possession offense only if he voluntarily possesses the prohibited item. Tex. Penal Code Ann. § 6.01(a) (Vernon 2003); Smith, 176 S.W.3d at 916. 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. Tex. Penal Code Ann. § 6.01(b) (Vernon 2003); Smith, 176 S.W.3d at 916. If the firearm is not found on the defendant's person or is not in the defendant's exclusive possession, the evidence must link the defendant to the firearm. Bates v. State, 155 S.W.3d 212, 216-17 (Tex.App.-Dallas 2004, no pet.). When determining whether sufficient links exist, an appellate court examines factors such as whether: (1) the firearm was in plain view; (2) the defendant was the owner of the vehicle or residence where the firearm was found; (3) the defendant was in close proximity to the firearm and had ready access to it or it was found on his person; (4) the defendant attempted to flee; (5) the defendant's conduct indicated a consciousness of guilt; (6) the defendant had a special connection to the firearm; (7) the firearm was found in an enclosed space; and (8) the defendant made incriminating statements. See Smith, 176 S.W.3d at 916; Bates, 155 S.W.3d at 216-17. However, no set formula of facts exists to dictate a finding of links sufficient to support an inference that the defendant knowingly possessed a firearm. See Smith, 176 S.W.3d at 916. Rather, it is the "logical force" of the factors, not the number of factors present, that determines whether the elements of the offense have been established. See id. C. Application of the Law to the Facts
Shelton argues the evidence was insufficient to link him to the gun because Robledo and Lester Wilson were unreliable witnesses and their testimony was contradicted by Leester's testimony. He claims Robledo was taking medication for pain and muscle relaxation, so her perception was impaired. Also, he claims Lester Wilson was on probation for a felony drug offense and is the brother of Shelton's girlfriend, so he would have been protective of his sister and hostile toward Shelton. Robledo and Lester Wilson stated Shelton left his apartment with the gun and Robledo stated she saw Shelton go into Leester's apartment with the gun, but Shelton argues there is no corroborating physical evidence such as fingerprints or scientific evidence. Shelton contends Leester was the only neutral witness. Leester stated Shelton did not have a gun when he entered Leester's apartment, which is contrary to Robledo's and Lester Wilson's testimony. Of course, the State contends factual sufficiency is clear from the record. The record shows Robledo saw Shelton fire a gun in the breezeway between Nikki Wilson's and Robledo's apartments, carrying a gun when he ran upstairs to Lester Wilson's apartment, and go to Leester's apartment with the gun still in his hand. Both Robeldo and Lester Wilson heard a gun fired from inside Nikki Wilson's apartment. Lester Wilson saw Shelton holding a gun when Shelton answered the door of Nikki Wilson's apartment. Leester saw Shelton go to the back of his apartment when he opened the door for the police. Shelton remained inside Leester's apartment for approximately fifteen to twenty minutes before complying with the police's request for him to leave the apartment. The police recovered one .45 caliber automatic cartridge casing in a bedroom of Nikki Wilson's apartment, another in the breezeway between Nikki Wilson's and Robledo's apartments, and one .45 caliber semiautomatic gun that was hidden in the ceiling panels of the hallway in Leester's apartment. Shelton makes his factual sufficiency challenge based on the unreliability of Robledo and Lester Wilson and the contrary evidence presented by Leester. However, these contentions address the credibility of the witnesses. Because the jury is the sole judge of a witness's credibility and the weight to be given the testimony, the jury was permitted to believe or disbelieve the State's witnesses and the contrary testimony of Leester. We conclude the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict. We conclude the evidence is factually sufficient to support Shelton's conviction. Issue three is decided against Shelton. IV. CONCLUSION
The evidence is legally and factually sufficient to establish Shelton was the person convicted of the offense alleged in the first enhancement paragraph. The evidence was factually sufficient to support Shelton's conviction. The trial court's judgment is affirmed.