Deron Grayson Clare v. State ( 2005 )

Opinion issued December 22, 2005

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-04-00465-CR

 __________

DERON GRAYSON CLARE, Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 959654

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MEMORANDUM OPINION  

          A jury found appellant, Deron Grayson Clare, guilty of the offense of being a felon in possession of a firearm, enhanced with two prior felony convictions. Appellant pled true to the enhancement paragraphs, and the trial court sentenced him to 50 years in prison. In four points of error, appellant contends that (1) the evidence is factually insufficient to show that he exercised care, custody, and control of the firearm; (2) the trial court erred in failing to instruct the jury on the accomplice witness rule; and (3) he received ineffective assistance of counsel when his attorney failed to request a jury instruction on the testimony of an accomplice witness and allowed hearsay testimony. We affirm.

                                                        Background

          Officer Farquhar testified that, at approximately 3 a.m. on August 26, 2003, he was in a marked car patrolling an area known for drug trafficking when he noticed two cars, facing in opposite directions, stopped in the middle of the street. He approached the cars, and, when he turned on his overhead lights, the two cars “took off quickly” in opposite directions. Officer Farquhar testified that he followed one of the cars, which stopped a short distance away. While he was sitting in his squad car checking the car’s license plate on his computer, the driver of the car got out of the car “immediately” and approached the police car. The driver was in a “very excited state” and was “flailing his arms.” Officer Farquhar testified that it is “atypical” for someone to react in this way, and he was concerned for his safety. He told the driver, whom he knew by name and sight to be appellant, to get back in the car, and he radioed for back-up. Once the additional officers arrived, Officer Farquhar approached the car and asked appellant for his identification and proof of insurance. When he was unable to present either document, appellant was arrested and placed in the back of Officer Farquhar’s squad car.

          Officer Farquhar testified that he then went to the passenger in the car, Jonathan Keegan, who was “extremely nervous” and perspiring. Keegan volunteered that there was a gun under the front passenger seat of the car. Officer Farquhar said that he could see the butt of a gun in plain view under the seat. He retrieved the .44 magnum revolver and found it to be fully loaded with hollow point bullets. Officer Farquhar testified that appellant was known to carry a large caliber handgun.

Q.Do you have of your own personal knowledge that he is known to carry a weapon, a .44 Smith and Wesson?

A.I have knowledge from individuals who basically walk around in that street area–back on Thompson that–and prior to this particular engagement with the defendant–had told me on numerous occasions that this defendant was known to carry a large caliber handgun.  

          Keegan testified that he got into the right passenger side of a car driven by appellant. Shortly after getting into the car, he saw police lights. Keegan testified that, after they were stopped, appellant told him to reach under his seat and “hand me that under your seat.” Appellant said, “my boy left his stuff in the car.” Keegan testified that he thought appellant was talking about drugs until appellant said, “my boy left his piece in the car.” Keegan then knew that appellant was referring to a firearm. Keegan did not reach under the seat. After appellant got out of the car, Keegan told the police about the gun under the seat. Keegan testified that the officer told him that he knew that the gun was appellant’s because he had “been getting calls and complaints that [appellant had] been packing a big and large firearm.”  

          Neither appellant nor Keegan, both felons, admitted to ownership of the gun, and both were arrested for the offense of being a felon in possession of a firearm.  

                                                         Sufficiency

          In his first point of error, appellant argues that the evidence is factually insufficient to show that he exercised care, custody, or control of the firearm.

Standard of Review

          In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). The appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Felon in Possession

          A person commits the offense of felon in possession of a firearm if he has been convicted of a felony offense and possesses a firearm within the five-year anniversary of his release from confinement following conviction or from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon 2005).

          “‘Possession’ means actual care, custody, control, or management.” Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2005). A person commits a possession offense only if he voluntarily possesses the prohibited item. See id. § 6.01(a) (Vernon Supp. 2005); Powell v. State, 112 S.W.3d 642, 644 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). “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. Pen. Code Ann. § 6.01(b); Powell, 112 S.W.3d at 644.

          When a defendant’s possession of contraband is not exclusive, the State may prove knowing possession by evidence affirmatively linking the defendant to the contraband. Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (applying affirmative links analysis to offense of possession of firearm by felon). An affirmative link may be established through direct or circumstantial evidence. Powell, 112 S.W.3d at 644. Some non-exhaustive factors that may affect the determination of an affirmative link include whether the contraband was (1) in a car driven by the accused, (2) in a place owned by the accused, (3) conveniently accessible to the accused, (4) in plain view, or (5) found in an enclosed space. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

Possession

          To negate the finding that he was in possession, appellant relies on the facts that he was never found to have exclusive possession of the firearm, the firearm was located under the passenger’s seat, his fingerprints were not found on the gun, and someone else had gotten out of the car before Keegan got into the car.

          The fact that there was another occupant of the vehicle does not preclude appellant from being in possession of the firearm. When there is not exclusive control, then the State must show an affirmative link. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Keegan testified that appellant asked him to get the “piece” from under the seat. Officer Farquhar testified that appellant (1) was the driver of the car, (2) “took off quickly” when he saw the police car, (3) was known for carrying a large firearm, and (4) acted “atypically” when he was stopped. Furthermore, the firearm was tucked under the passenger seat in plain view, within appellant’s reach. These factors are sufficient to show an affirmative link. We hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 821.

          We overrule appellant’s first point.

Accomplice Witness

          In his second point of error, appellant contends that the trial court erred in failing to instruct the jury on the accomplice-witness rule.  

Charge

          Usually, a defendant must object to an error in order to raise the issue on appeal. Claxton v. State, 124 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The court may conclude there is error, however, even without an objection, if the error involves issues “upon which a district court has a duty to instruct without a request or objection from either party.” Id. (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)). When a witness who is an accomplice as a matter of law gives testimony to which article 38.14 applies, the statutorily required instruction is “law applicable to the case” within the meaning of article 36.14. Goodman v. State, 8 S.W.3d 362, 364 (Tex. App.—Austin 1999, no pet.).          A prosecution witness who is indicted for the same offense as the defendant is an accomplice witness as a matter of law. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). “If a prosecution witness is an accomplice witness as a matter of law, the trial court is under a duty to instruct the jury accordingly. Failure to do so is error.” Id.

Error

          In determining whether to reverse a conviction due to a jury charge error, there is a two-step process. First we must determine whether there is any error in the charge. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

          Keegan, who testified for the State, was an accomplice because he was charged with being a felon in possession of a firearm along with appellant. See Herron, 86 S.W.3d at 631. Moreover, Keegan was an accomplice witness; thus, the trial judge had a duty to instruct the jury that his testimony implicating appellant should be viewed with a measure of caution. See Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998). Defense counsel did not request that an accomplice-witness rule instruction be given, and the trial court did not instruct the jury, sua sponte, that accomplice witness testimony must be corroborated. The trial judge’s failure to do so was error.  

  Harm

          Once error is established, we must then determine whether sufficient harm was caused by the error to require reversal. Arline, 721 S.W.2d at 351. When an accomplice witness testifies, his testimony must be corroborated by other evidence. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). In determining whether there is “other evidence,” a court must “eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense.” McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). “The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the non-accomplice evidence merely has to tend to connect appellant to the offense.” Id. at 613.

          In Herron v. State, the Court of Criminal Appeals stated:

The instruction merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense. Once it is determined that such non-accomplice evidence exists, the purpose of the instruction is fulfilled and the instruction plays no further role in the factfinder’s decision-making. Therefore, non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.

Herron, 86 S.W.3d at 632. The harmless error analysis for the omission of the accomplice-witness rule should be flexible taking into account the “existence and strength of any non-accomplice evidence and the applicable standard of harm.” Id.

          The degree of harm will depend on whether the error was preserved. Id. For an error that was not preserved, as here, the defendant must have suffered egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant or unless it appears from the record that the defendant did not have a fair and impartial trial. Id.

          In determining whether the error was harmful and reversal is required, an evidentiary review must be conducted, a review of any part of the record as a whole that may illuminate the actual, not just theoretical, harm to the accused. Id. at 174. For this review, the presence of actual harm must be analyzed in light of the entire jury charge, the state of the evidence including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Id.

          Trial counsel did not object to the trial court’s failure to include an accomplice witness instruction. Accordingly, appellant must show that he suffered egregious harm, namely that, without the accomplice-witness testimony, the evidence was so unconvincing to “render the State’s overall case for conviction clearly and significantly less persuasive.” Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991).

          Appellant argues that he suffered egregious harm when the accomplice-witness instruction was omitted because the non-accomplice evidence did not show that he knew the firearm was in the car or that he exercised control over it.

          Here, the non-accomplice evidence consisted of Officer Farquhar’s testimony that (1) appellant was the driver of the car, (2) the firearm was in plain view under the passenger seat, (3) the firearm was within appellant’s reach, (4) appellant had the reputation for carrying a large caliber firearm, (5) appellant was acting atypically, and (6) appellant “took off quickly” when he saw the police car. This non-accomplice evidence “tends to connect” appellant to the offense. See McDuff, 939 S.W.2d at 612. The non-accomplice testimony thus rendered harmless the “failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.” Herron, 86 S.W.2d at 632. Furthermore, if the instruction had been given, the evidence is not so weak and unconvincing that the jury would have found the State’s case significantly more persuasive. See Saunders, 817 S.W.2d at 692. Appellant failed to show that he suffered egregious harm and thus the error is harmless.

          We overrule appellant’s second point or error.  

Ineffective Assistance of Counsel

          In his third and fourth points of error, appellant argues that he received ineffective assistance of counsel when his attorney failed to request a jury instruction on the accomplice witness testimony from Keegan and when he allowed hearsay testimony.  

Standard of Review

          In order for an appellant to prevail on an ineffective assistance of counsel claim, the appellant must show: (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel’s error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). It is appellant’s burden to prove that he had ineffective assistance of counsel and that the challenged action was not a part of the defense strategy. Gamble, 916 S.W.2d at 93.

Jury Instruction

          In his third point of error, appellant contends that he “received ineffective assistance of counsel when his attorney failed to request a jury instruction on the testimony of an accomplice witness.”

          The failure to request a jury instruction on accomplice witness testimony may constitute ineffective assistance of counsel under some circumstances. Beal v. State, 35 S.W.3d 677, 683 (Tex. App.—Houston [1st Dist.] 2000), rev’d on other grounds, 91 S.W.3d 794 (Tex. Crim. App. 2002). When testimony is adequately corroborated by other evidence, there is no reasonable probability that the result of the trial would have been different “if the omitted instruction had been submitted to the jury.” Beal, 35 S.W.3d at 684 (holding that accomplice witness’s “testimony was adequately corroborated by other evidence; therefore, we find no reasonable probability that the result of the trial would have been different if the omitted instruction had been submitted to the jury”).

          Because we have already held that the failure to submit an accomplice-witness instruction was rendered harmless by the non-accomplice witness testimony, appellant cannot meet the second prong in Strickland—but for counsel’s error, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

          We overrule appellant’s third point of error.

Hearsay

          In his fourth point of error, appellant contends that he “received ineffective assistance of counsel when his attorney allowed hearsay testimony which provided the only corroborating evidence of appellant’s guilt.” Specifically, appellant complains of the following testimony when Officer Farquhar testified that appellant was known to carry a large caliber handgun.

Q.Do you have of your own personal knowledge that he is known to carry a weapon, a .44 Smith and Wesson?

A.I have knowledge from individuals who basically walk around in that street area–back on Thompson that–and prior to this particular engagement with the defendant–had told me on numerous occasions that this defendant was known to carry a large caliber handgun.  

There is a “strong presumption that defense counsel’s conduct falls within the wide range of reasonable, professional assistance . . . and appellant must overcome this presumption.” Lagaite v. State, 995 S.W.2d 860, 864 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

          Appellant’s trial counsel cross-examined Officer Farquhar about appellant’s reputation for carrying a large weapon.

Q.Mr. Farquhar, you stated earlier in your testimony that you knew [appellant] to carry a gun?

A.I knew from statements from other people in the neighborhood that [appellant] was known to carry a weapon, yes.

Q.Okay. And when you approached him, removed him from - - well, the first thing that you said to him was can you [sic] see your driver’s license and proof of insurance?

A.Yes, sir. That’s typically what I respond with on traffic stop.

          Q.      It wasn’t I’m going to pull him out of the car because I know that this man is known for carrying a gun?

A.No.

Q.I wasn’t - - you weren’t concerned about that?

          A.      I was concerned for officer safety because the defendant quickly exited the vehicle and in a very excited manner and started approaching my patrol car. I was concerned about that. As far as, you know, immediately pulling him out and arresting him, no.

The State then called Houston Police Officer Kivela to testify regarding his role as the back-up officer on the scene. On cross-examination, appellant’s trial counsel questioned Officer Kivela about how he would react if he stopped someone who had a reputation of carrying a weapon.

Q.If you were to conduct a traffic stop, pull somebody over that you knew was known to carry a gun, what would you do? How would you handle that situation?

A.Well, I’d handle it as I do every traffic stop, with officer safety in mind.

Q.So, if you knew someone was - - had a reputation for carrying a gun with them, you’d be a little bit more on edge, correct, a little bit more alert?

A.Probably so.

Q.You probably wouldn’t ask them to search through their glove box for driver’s license or proof of insurance. Isn’t that fair to say?

A.I’d probably have to do that. I mean, I’d just be more vigilant maybe.

Q.You wouldn’t want to give someone an opportunity to be reaching around their [sic] car grabbing things if you knew that they [sic] carried a gun; isn’t that correct?

A.Not really. But there’s certain things that have to be done. I mean, if I knew for a fact that there was a gun in there, that would be a different case rather than a suspicion.

Q.So, if you knew someone had a gun in their [sic] car, you wouldn’t treat it any differently than a speeding ticket?

A.Well, if I knew 100 percent that there was a gun in the car - - someone actually told me yes, there’s a gun in that car right there, that - - that would probably be a little different.

Finally, during closing argument, appellant’s trial counsel again referenced Officer Farquhar’s testimony regarding appellant’s reputation for carrying a gun.

. . . [Officer Farquhar] said he’s known to have a gun. Of course, he’s going to say that. These officers have been witnesses in cases before. They’ve got to try to make the case.

If he knows - - common sense will tell you if you’re a police officer and you know someone’s going to have a gun or there’s a high likelihood of having a gun in the car, are you really going to let them [sic] have the opportunity to search through their [sic] glove box, look for their [sic] driver’s license and proof of insurance? I wouldn’t. And I don’t think an officer would either if he really knew that that person was known to carry a gun.

It appears from the record that appellant’s trial counsel may have intentionally allowed the hearsay testimony into evidence in an apparent attempt to discredit Officer Farquhar’s credibility.    Accordingly, there is nothing in the record that supports the idea that appellant’s trial counsel was ineffective when he failed to object. Appellant has not overcome the presumption that his counsel’s failure to object was a part of trial strategy. See Gamble, 916 S.W.2d at 93.

          We overrule his fourth point of error.

Conclusion  

          We affirm the judgment of the trial court.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).