Bailey, Eric Eugene v. State ( 2006 )

Affirmed and Memorandum Opinion filed February 16, 2006

Affirmed and Memorandum Opinion filed February 16, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00325-CR

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ERIC EUGENE BAILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1200162

M E M O R A N D U M  O P I N I O N

A jury found appellant Eric Eugene Bailey guilty of the misdemeanor offense of possessing a firearm after previously having been convicted of the offense of assault to a family member and before the fifth anniversary of his release from confinement following the assault conviction.^[1]  Appellant pleaded true to an enhancement paragraph, and the jury assessed punishment at 365 days= confinement in jail and a fine of $1,000.  In four points of error, appellant argues (1) the trial court erred in denying his motion for a directed verdict, (2) the prosecutor committed misconduct in relation to the admission of evidence, (3) counsel was ineffective in failing to object to inadmissible evidence, and (4) the court erred in admitting evidence (the firearm) for which the State did not establish the proper chain of custody.  We affirm.

Factual Background

Officers T.B. Anderson, David Jasper, and Laura Drury, of the Harris County Sheriff=s Office, responded to a 911 call from a female reporting a family disturbance and assault at appellant=s house. When the officers arrived at the residence, a woman outside informed them her cousin was inside with her cousin=s Ababy=s daddy.@  The woman also told the officers the man would not let her cousin leave the house and her cousin had screamed for her to call the police.

When appellant answered the officers= knock at the door, he was breathing hard, as though he had been in a fight, and he had blood on his face.  Based on these circumstances, Officer Jasper immediately handcuffed appellant and placed him in a patrol car for safety.  While Officer Jasper remained with appellant, Officers Anderson and Drury entered the house to check on the woman inside, Wysemuria Willis.

Officers Anderson and Drury entered the bedroom and noticed it was in disarray, as if a struggle had occurred.  Officer Drury heard Willis crying in the attached bathroom and when to check on her. According to Drury, Willis was very upset, was screaming and crying, and was covered in blood.  Willis told Drury she and appellant had fought.  Appellant poked her eye, and her eye was red and swollen. Willis also told Drury appellant had grabbed her by her head and thrown her on to the bed, causing her to cut herself on a vase.

While Drury was attending to Willis, Officer Anderson noticed a gun lying, uncovered, on the bedroom floor near the bathroom door.  Anderson seized the gun and gave it to Officer Jasper, who was still outside in his patrol car with appellant.  Without being asked, appellant kept yelling the gun belonged to his brother.

Willis, who dated appellant for five years and had a child with him, stated she and appellant leased the duplex together and shared the bedroom in which Officer Anderson found the gun.  She also identified items on top of an entertainment center in the bedroom as appellant=s wallet, cellular telephone, and keys.

At trial, however, Willis testified to a different version of events than those described by the officers.  Willis agreed the argument started in the bedroom, but claimed she started it.  She stated appellant did not hit her, and explained she hurt her face when she tripped and fell on the vase she had broken earlier.  At one point she went into the bathroom to wash her face, and appellant went in with her. She testified the blood on her sweatshirt was from a previous incident that did not involve appellant and her eye was swollen from crying.

Willis testified appellant=s brother, Charles Bailey, owned the gun Officer Anderson seized. According to Willis, Charles left the gun on top of a television in her seven-year-old son=s room, where Charles had stayed for the weekend.  When Willis found the gun in her son=s bedroom, she took it and placed it on top of some clothes in a closet in the bathroom.

Willis testified Officer Drury found the gun in the closet while the officer was Agoing through [her] things.@ Willis claimed the gun was never on the floor.  She never saw appellant in possession of a gun, and according to her, appellant was not aware of the gun=s presence in the closet.

Appellant=s brother testified, confirming the gun was his. He claimed he left the loaded gun in the seven-year-old=s bedroom.  He stated doing so was the result of a Acareless mistake.@

Discussion

I. Denial of Appellant=s Motion for a Directed Verdict

In his first point of error, appellant argues the trial court erred when it denied his motion for a directed verdict.  An appellate court treats a point of error complaining about the trial court=s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Evidence is legally sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt.  Id. at 482B83 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)).  This standard applies to both direct and circumstantial evidence cases.  Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).  Our duty is not to reweigh the evidence from reading a cold record but to position ourselves A>as a final, due process safeguard ensuring only the rationality of the factfinder.=@ Williams, 937 S.W.2d at 483 (quoting Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App.1995); and Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

To establish unlawful possession of a firearm in the present case, the State had to prove appellant was previously convicted of a Class A misdemeanor assault on a member of his family or household and possessed a firearm after the conviction and before the fifth anniversary of the date of his release from confinement following conviction of the misdemeanor.  See Tex. Pen. Code Ann. ' 46.04(b)(1) (Vernon Supp. 2005); see also Tex. Pen. Code Ann. ' 22.01 (Vernon Supp. 2005) (proscribing assault).  Appellant contends the evidence was insufficient to establish the element of possession.

We use the rules adopted for determining the sufficiency of the evidence in cases of possession of a controlled substance to analyze the sufficiency of the evidence in cases involving possession of a firearm.  Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the State had to prove appellant knew of the firearm=s existence and he exercised actual care, custody, control, or management over it.  See id. at 38; see also Tex. Pen. Code Ann. ' 1.07 (39) (Vernon Supp. 2005) (defining possession as Aactual care, custody, control, or management@).  Possession need not be exclusive.  See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985) (regarding possession of dangerous drugs and narcotics).

When the contraband is not found on the accused=s person or is not in the accused=s exclusive possession, additional facts must affirmatively link the accused to the contraband.  McMillon v. State, 940 S.W.2d 767, 768B69 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d). Factors establishing affirmative links may include whether:  (1) the contraband was in a place owned by the accused; (2) the contraband was conveniently accessible to the accused; (3) the contraband was in plain view; (4) the contraband was found in an enclosed space; (5) the conduct of the accused indicated a consciousness of guilt;  (6) the accused had a special relationship to the contraband; and (7) affirmative statements connect the accused to the contraband.  See Corpus, 30 S.W.3d at 38 (listing ten factors relevant in case in which firearm was found in vehicle); see also Davis v. State, 93 S.W.3d 664, 668 (Tex. App.CTexarkana 2002, pet. ref=d) (listing Corpus factors relevant to case in which firearm was found in residence, rather than vehicle).  The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.  Corpus, 30 S.W.3d at 38.  The State=s evidence must establish the accused=s connection with the firearm was more than just fortuitous.  Bates v. State, 155 S.W.3d 212, 216 (Tex. App.CDallas 2004, no pet.).  Nevertheless, the link between the accused and the firearm need not be so strong that it excludes every other outstanding reasonable hypothesis except the accused=s guilt. See Jennings v. State, 107 S.W.3d 85, 89 (Tex. App.CSan Antonio 2003, no pet.) (rejecting defendant=s argument resting on premise State=s evidence had to eliminate the reasonable hypothesis that appellant was entirely unaware of the presence of the weapon); see also Grant v. State, 989 S.W.2d 428, 433 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (in possession of controlled substance case, stating link between defendant and drugs need not be so strong that it excludes every other outstanding reasonable hypothesis except defendant=s guilt).

In the present case, the following evidence affirmatively links appellant with the gun:

$ the gun was found in a house appellant leased, and in a bedroom appellant shared, with Willis;

$ the gun was in plain view;

$ the gun was found a foot and a half from the bathroom door, an area where Willis=s testimony placed the defendant shortly before the police arrived;

$ there were only two adults in the house at the time of the fight, and given the evidence appellant was beating Willis, a reasonable jury could infer appellant, rather than Willis, exercised control over the gun;

$ appellant, without being questioned, spontaneously, and apparently vigorously, denied the gun was his when he merely saw it in Jasper=s patrol car.

The evidence in the present case compares more than favorably to that in Davis v. State, 93 S.W.3d 664 (Tex. App.CTexarkana 2002, pet. ref=d).  As the appellate court described:

The evidence show[ed] that, during the early morning hours of a night in May 2001, Longview police officer Lisa Chatterton responded to a call concerning a disturbance at a one‑bedroom duplex.  Chatterton testified that on arrival she observed Larry and Marilyn Davis arguing loudly just past a screen door inside the duplex.  Chatterton entered the residence and separated the two individuals who were arguing.  She observed another individual, a male, sitting on a sofa.  Chatterton asked Marilyn to go outside the house onto a porch and told Larry to remain inside.  Chatterton went outside with Marilyn and testified that, once she and Marilyn were out of the house, Larry latched the screen door and closed the inside door and locked it.  Chatterton testified that a few seconds later she heard a loud gunshot from inside the house. She and Marilyn quickly retreated to the street, where another police officer had arrived.  Chatterton reported the gunshot over the police radio, which prompted more officers to come to the scene, where they set up a perimeter around the house.  Larry did not leave the house, and eventually a SWAT team was called to the scene. After failed efforts to make contact with Larry by telephone, a chemical agent was fired into the house.  Larry and another female then came out of the house. Chatterton testified she did not know what happened to the person she observed earlier sitting on the sofa. The SWAT team then checked the house and found a shotgun containing a single, fired hull under the bed.

Id. at 667.

The appellate court then isolated the following as supporting its conclusion the evidence was legally sufficient to support Larry Davis=s conviction for possession of a firearm:

In this case, the duplex was rented by Larry.  He lived there, and the lease indicates he had done so for nearly a year before this incident.  The shotgun was found under the bed in the one‑bedroom residence.  This evidence, together with the testimony of Chatterton that she heard the shotgun blast shortly after she observed Larry and Marilyn in a heated argument and only a few seconds after she observed Larry latch the screen door and close and lock the inside door, was legally sufficient for the jury to reasonably conclude Larry was in possession of the firearm as alleged.

Id. at 668; see also Bryant v. State, 982 S.W.2d 46, 48B50 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (holding evidence legally and factually sufficient to link defendant to cocaine in bedroom when defendant was present in front yard when officers searched house, cocaine was lying in plain view on dresser in bedroom she shared with another person, and defendant argued there were four persons inside house at time who could have placed cocaine in her room).

Similarly, we conclude the evidence in the present case is legally sufficient for the jury to reasonably conclude appellant was in possession of the firearm as alleged.  We overrule appellant=s first point of error.

II. Alleged Prosecutorial Misconduct

In his second point of error, appellant argues the prosecutor engaged in misconduct when he represented to the trial court that the business record affidavit serving as the predicate for admission of the 911 call tape had been on file with the court for fourteen days. See Tex. R. Evid. 902(10)(a) (providing for admissibility of business records accompanied by affidavit if records and affidavit are filed with clerk of the court at least fourteen days prior to day on which trial commences). The affidavit is file stamped March 5, 2004. Trial commenced March 17, 2004, on which day, the prosecutor stated to the court, A[T]he State has a 911 tape, a business record affidavit that=s been in the file for fourteen days, would like to go ahead and play that tape.@^[2]  When the trial court asked whether defense counsel had any objections, counsel responded, ANone, whatsoever.@  Appellant also did not object to the prosecutor=s misrepresentation.

To preserve error in cases of prosecutorial misconduct, a defendant must (1) make a timely and specific objection;  (2) request an instruction that the jury disregard the matter improperly placed before the jury; and (3) move for a mistrial.  Morrison v. State, 132 S.W.3d 37, 48B49 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (citing Tex. R. App. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)).  By not objecting, appellant failed to preserve error regarding the prosecutor=s conduct.  See Banda v. State, 890 S.W.2d 42, 61 (Tex. Crim. App. 1994) (holding, by not objecting, appellant failed to preserve error regarding complaints that prosecutor misstated the law, argued matters outside the record, and repeatedly attempted to inflame the jury during closing arguments and thereby violated his Eighth and Fourteenth Amendment rights).

To preserve error regarding the admission of evidence, a defendant must timely object or make a motion to strike, stating the specific ground if the ground is not apparent from the context.  See Tex. R. Evid. 103(a)(1).  By not objecting, appellant failed to preserve error regarding admission of the 911 call tape.  See Nichols v. William A. Taylor, Inc., 662 S.W.2d 396, 399B400 (Tex. App.CCorpus Christi 1983, no writ) (holding, because defendant did not specifically object to failure to file documents with clerk of court 14 days prior to trial, include such objection in motion for new trial, or otherwise bring failure to file

timely to attention of trial court, she could not raise objection on appeal); see also Granviel v. State, 552 S.W.2d 107, 121B22 (Tex. Crim. App. 1976) (holding capital murder defendant was not entitled to appellate relief on basis of claim his medical records were admitted without State=s having complied with statutory requirement that business record be on file 14 days before trial, when accused=s trial objections had been too general and untimely).

We overrule appellant=s second point of error.

III. Alleged Ineffective Assistance of Counsel

In his third point of error, appellant argues his trial counsel was ineffective for failing to object to admission of the 911 tape.^[3]  To prevail on his claim of ineffective assistance of counsel, appellant must prove (1) trial counsel=s performance was deficient, and (2) the deficient performance was so serious it prejudiced his defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To establish the first prong, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms; to establish the second, that there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Bone, 77 S.W.3d at 833.  If appellant fails to satisfy either prong of the Strickland test, we do not need to consider the remaining prong.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

Appellant must identify specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove counsel=s acts or omissions fell below the professional norm for reasonableness.  Garcia v. State, 112 S.W.3d 839, 845 (Tex. App.CHouston [14th Dist.] 2003, no pet.);  see Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). The alleged ineffectiveness must be firmly founded in the record.  Bone, 77 S.W.3d at 835.

Our scrutiny of counsel=s performance must be highly deferential, and we indulge a strong presumption counsel was effective.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant must overcome this presumption by illustrating why trial counsel did what he did.  Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d). In the absence of a record explaining trial counsel=s actions, we will not conclude trial counsel=s performance fell below an objective standard of reasonableness unless the conduct was so outrageous no competent attorney would have engaged in it.  See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

This court has held compliance with the fourteen-day period in the precursor to Texas Rule of Evidence 902(10)(a) is mandatory.   See Chem. Bank v. Commercial Indus. Serv. Co., 662 S.W.2d 802, 804 (Tex. App.CHouston [14th Dist.] 1983, writ ref=d n.r.e.). Counsel, therefore, might have prevailed on a motion to exclude the tape itself.^[4]

In the present case, however, evidence about the existence and contents of the 911 call would have been independently admissible, not for the truth of the assertions on the tape, but to provide an explanation for why the officers were present at appellant=s home.  See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (holding victim=s appointment book and patient application form were not inadmissible hearsay when State tendered them to show how appellant became a suspect in the investigation).  Thus, counsel=s failure to object to the tape itself may have constituted a plausible trial strategy, such as a plan to appear open and honest with the jury.  See McKinny v. State, 76 S.W.3d 463, 473 (Tex. App.CHouston [1st Dist.] 2002, no pet.); Stroman v. State, 69 S.W.3d 325, 332 (Tex. App.CTexarkana 2002, pet. ref=d); Varughese v. State, 892 S.W.2d 186, 196 (Tex. App.CFort Worth 1994, pet. ref=d).  Counsel=s conduct was therefore not so outrageous no competent attorney would have engaged in it; and, in the absence of a record explaining trial counsel=s actions, we will not conclude his performance fell below an objective standard of reasonableness  See Garcia, 57 S.W.3d at 440.

We overrule appellant=s third point of error.

IV. Chain of Custody

In his fourth point of error, appellant argues the trial court erred in admitting the gun over appellant=s chain-of-custody objection.   An objection to the chain of custody is similar to an objection to inadequate authentication or identification in that both objections complain about the lack of the proper predicate to admitting the item in question. Davis v. State, 992 S.W.2d 8, 10 (Tex. App.CHouston [1st Dist.] 1996, no pet.).  The sufficiency of an evidentiary predicate is within the trial court=s discretion, and we will affirm the judgment unless we conclude the trial court abused its discretion.  Smith v. State, 683 S.W.2d 393, 405 (Tex. Crim. App. 1984);  Reed v. State, 158 S.W.3d 44, 52 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). If evidence is properly identified, questions concerning care and custody typically go to the weight, not the admissibility, of the evidence.  Reed, 158 S.W.3d at 52.

Texas Rule of Evidence 901 provides in part, AThe requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.@  Tex. R. Evid. 901(a).  The rule also provides the following examples of authentication or identification that conform to the requirements of the rule: (1) A[t]estimony of a witness with knowledge . . . that a matter is what it is claimed to be@; and (2) A[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.@  Tex. R. Evid. 901(b)(1), (4).  In short, when an item is easily identifiable and resistant to change, chain of custody is not required if there is direct evidence at trial that the same item was taken from the scene of the crime.  See Davis, 992 S.W.2d at 11.

In objecting to admission of the gun, appellant argued that, because Officer Anderson did not participate in the bagging and marking of the handgun, proper chain of custody was not established.  Officer Anderson, however, testified he knew the handgun was the one he recovered from appellant=s residence because of the initials C.A.B., H.P.D. engraved on the side of the handgun.  Chain of custody, therefore, was not required because the initials on the handgun made it easily identifiable, and the gun and the initials were resistant to change.  See Davis, 992 S.W.2d at 11.  Officer Anderson=s testimony identifying the handgun and its distinctive characteristics, the engraved initials, properly authenticated it for admission.  See Tex. R. Evid. 901(b)(1), (4).

We overrule appellant=s fourth point of error.

Conclusion

Having overruled appellant=s four points of error, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed February 16, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  See Tex. Pen. Code Ann. ' 46.04(b)(1) (Vernon Supp. 2005).

^[2]  Appellant argues, AThe State Attorney committed prosecutorial misconduct when he testified to the court and jurors that the business record affidavit had been in the file fourteen (14) days.@  The prosecutor was not testifying, and the record does not reflect that the jurors heard his comments to the court.

^[3]  At one point, appellant states, ADefense counsel was ineffective when he failed to object to the admission of the business record affidavit.@  Read in its entirety, however, his argument is directed at counsel=s failure to object to admission of the tape.

^[4]  In Chemical Bank, this court upheld judgment on a directed verdict that resulted after the trial court excluded business records because the plaintiff/appellant had not complied with the fourteen-day filing requirement of former Texas Revised Civil Statutes article 3737e , the precursor to present Rule of Evidence 902(10)(a).  Chem. Bank v. Commercial Indus. Serv. Co., 662 S.W.2d 802, 804 (Tex. App.CHouston [14th Dist.] 1983, writ ref=d n.r.e.).  Regarding an earlier case from the court of criminal appeals, this court wrote:

We realize that in Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 250 (1977) (citing Coulter v. State, 494 S.W.2d 876 (Tex. Cr. App.1973)), a case not cited by either party, the court stated in dictum that the filing requirement of article 3737e should not be mechanistically applied.  However, the Coulter case, upon which the court relied, dealt with the interpretation of trustworthiness of business records, not a filing deadline.  We find, therefore, that the fourteen day filing deadline in article 3737e is mandatory.

Id.