Don Allen Westbrook v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-455-CR
DON ALLEN WESTBROOK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
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I. INTRODUCTION
Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our
January 8, 2009 opinion and judgment and substitute the following. See Tex.
R. App. P. 50. We write to clarify one statement in our original opinion.
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… See Tex. R. App. P. 47.4.
Appellant Don Allen Westbrook appeals his conviction for unlawful
possession of a firearm by a felon. In two points, Westbrook argues that the
evidence is legally and factually insufficient to support his conviction. We will
affirm.
II. F ACTUAL B ACKGROUND
Deputies Howard R. Johnson, Jose Arroyo, and Raymond Garcia with the
Tarrant County Sheriff’s Department responded to a domestic disturbance
dispatch at Hazel Fincher’s residence on July 20, 2006, at 10:30 p.m. When
they knocked on the front door, Westbrook answered and allowed them to
enter the house.
Deputy Arroyo stayed with W estbrook and his son Cody in the game
room while Deputy Johnson went to check on W estbrook’s mother, Hazel
Fincher, in the back of the residence. Deputy Johnson noted that Fincher was
very upset and agitated. Deputy Johnson was concerned about Fincher’s
safety, so he collected a pistol and a shotgun from Fincher, and with her
consent, he secured them in the trunk of the patrol car. After he collected and
secured Fincher’s pistol and shotgun, he asked Westbrook if there were any
more weapons, and Westbrook said that he had a shotgun in his room. Deputy
Johnson asked Westbrook which room was his, and Westbrook started walking
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down the hallway;2 Deputy Johnson stopped Westbrook and told him to point
to where the weapon was located. Westbrook pointed to the left side of his
bed where there was a denim shirt, and inside the shirt was a Browning twelve-
gauge shotgun that had four shells in it. Deputy Johnson noted that Westbrook
did not seem surprised when the denim shirt was removed to reveal the
shotgun.
Deputy Arroyo also testified that when Deputy Johnson asked Westbrook
if there were any weapons in the house, Westbrook said that there was one in
his bedroom and that Deputy Johnson went in the bedroom and retrieved the
shotgun, which had “a jacket hung over it or something.” Deputy Arroyo said
that Westbrook did not make any comments about who owned the gun.
Fincher testified that at the time of the incident, her daughter Karen Leigh
Westbrook and Karen’s son Brian Sauble were staying with her, along with
Westbrook and his son Cody. Fincher said that Brian and Cody were occupying
Westbrook’s room and that Westbrook was spending the nights on the couch.
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… In rebuttal, Deputy Johnson testified that Westbrook was standing in
the game room next to the pool table when he asked him if there were any
more weapons in the house. As soon as Deputy Johnson asked Westbrook the
question, Westbrook started walking down the hall. Westbrook was not
already walking down the hall when Deputy Johnson asked him the question.
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She said that all of his clothes were in his car because she had become mad at
him, and he was planning to move out.
Fincher testified that she loved guns and owned a .38 caliber pistol,
which she kept under her mattress; a Browning twelve-gauge shotgun that she
bought in 1985, which she normally kept in the closet in her bedroom; and a
twelve-gauge pump shotgun that had originally belonged to her father. Fincher
knew that Westbrook could not possess any guns. Fincher said that Westbrook
“would not even pick up a gun, let alone have possession.”
Fincher did not know how the Browning shotgun moved from her closet
to Westbrook’s bedroom. She said that Cody and Brian normally had to ask for
her permission to use her guns but that Cody must have taken it without her
permission. She also said that the deputy sheriff took her guns without her
permission but admitted that she did not complain to him.
At the conclusion of Fincher’s testimony, she said that she did not tell the
deputy sheriff on the day of the incident that the Browning shotgun was not
Westbrook’s because the deputy sheriff did not ask her who the shotgun
belonged to. She also admitted that she had never called the district attorney’s
office to relate to them the facts about the Browning shotgun that she testified
to in court.
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Brian, who was sixteen at the time of trial and Fincher’s grandson and
Westbrook’s nephew, testified that he had gone to a friend’s house at the time
when Westbrook was arrested but that he was staying at his grandmother’s
house. He said that Westbrook had been sleeping on the couch and that he and
his cousin Cody had been staying in Westbrook’s room.
Brian stated that the Browning shotgun in question belonged to his
grandmother. He testified that his grandmother kept the shotgun in her closet
and that he had removed it from the closet and had taken it to Westbrook’s
room to clean it because he had planned to take it when he went hunting that
weekend. According to Brian, Westbrook did not know that the shotgun was
in his room. At the conclusion of Brian’s testimony, he also admitted that he
had never told the sheriff’s department or the district attorney’s office his story
about the Browning shotgun or that he was concerned that his uncle had been
unfairly charged with possession of it.
Karen,3 Westbrook’s sister, testified similarly to her son—that she and
Brian were staying at Fincher’s house but that they were not present when
Westbrook was arrested. Karen likewise testified that Brian and Cody were
staying in Westbrook’s room. Karen said that she did not know there was a
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… Karen admitted that she had been convicted of three felonies.
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gun in Westbrook’s room. She knew that her mother owned a pistol and a
couple of shotguns, including the Browning, but she said that the pistol was
under her mother’s mattress and that the Browning shotgun was in the closet.
Karen stated that Westbrook will not touch a gun. She further stated that
police had stopped her for having a nonworking tail light and that she had told
the officer who stopped her that the Browning was not Westbrook’s.
Westbrook ultimately took the stand in his defense, and his testimony
mimicked his relatives’ testimonies—that he, his mother, Karen, Cody, and
Brian were staying at his mother’s house; that the boys slept in his room; that
he slept in the game room or the den; that he knew his mother owned guns,
including the shotgun at issue; and that he knew he could not possess a gun.
He testified that he does not know how the shotgun arrived in his room. He
testified numerous times that he noticed the shotgun when he walked by the
entry to his room and that he pointed it out to the deputy sheriff.
During its closing argument, the State conceded that the shotgun was not
owned by Westbrook but argued that the evidence was sufficient to show that
he had possession of it. The trial court thereafter found Westbrook guilty of the
offense of felon in possession of a firearm and sentenced him to fifteen years’
confinement. This appeal followed.
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III. S UFFICIENCY S TANDARDS OF R EVIEW
A. Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light
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most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
Crim. App. 2007). We must presume that the factfinder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
The sufficiency of the evidence should be measured by the elements of
the offense as defined by the hypothetically correct jury charge for the case.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Bowden v.
State, 166 S.W.3d 466, 470 (Tex. App.—Fort Worth 2005, pet. ref’d). Such
a charge would be one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.
Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953
S.W.2d at 240. The law as authorized by the indictment means the statutory
elements of the charged offense as modified by the charging instrument. See
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
B. Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
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the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the factfinder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the factfinder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the judgment. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
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“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the factfinder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9. An opinion addressing factual sufficiency must include a
discussion of the most important and relevant evidence that supports the
appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.
Crim. App. 2003).
IV. S UFFICIENT E VIDENCE T O S UPPORT C ONVICTION
In his two points, Westbrook argues that the evidence is legally and
factually insufficient to support his conviction for possession of a firearm by a
felon. Specifically, Westbrook argues that his knowledge of the firearm’s
location and his presence at the location where the firearm was found is
insufficient to establish actual care, custody, control, or management of the
firearm.
Texas Penal Code section 46.04 provides that a person who has been
convicted of a felony commits an offense if he possesses a firearm after the
conviction and before the fifth anniversary of the person’s release from
confinement. Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2008).
Westbrook does not dispute that he had a prior felony conviction. Instead, he
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argues only that he did not possess the firearm that the deputies found. Our
analysis will therefore focus on this narrow argument.
Possession is defined by the penal code as “actual care, custody, control,
or management.” Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2008).
When there is no evidence that the appellant was in exclusive control of the
place where the firearm was found, the State must offer additional,
independent facts and circumstances that link him to the firearm. Smith v.
State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d). The links
between Westbrook and the firearm may be established by either direct or
circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.
Crim. App. 2005); see also Evans v. State, 202 S.W.3d 158, 161–62 (Tex.
Crim. App. 2006). In determining whether sufficient links exist, we look at
factors, such as whether the firearm was in plain view, whether Westbrook
owned the premises where the firearm was found, whether he was in close
proximity to the firearm and had ready access to it or whether it was found on
his person, whether he attempted to flee, whether his conduct indicated a
consciousness of guilt, whether he had a special connection to the firearm,
whether the firearm was found in an enclosed space, and whether he made
incriminating statements. Smith, 176 S.W.3d at 916. It is the logical force of
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the factors, not the number of factors present, that determines whether the
elements of the offense have been established. Id.
As set forth above, two competing story lines were developed at trial.
Both Deputy Johnson and Deputy Arroyo testified that after Deputy Johnson
had collected a pistol and a shotgun from Fincher, he went to the game room
and asked Westbrook whether there were any other weapons in the house and
that Westbrook replied that he had a shotgun in his bedroom. Westbrook
attempted to get in close proximity to the shotgun when he was taking Deputy
Johnson to its location, but Deputy Johnson made him stop and point to it.
Westbrook pointed to a denim shirt bundled next to Westbrook’s bed. Deputy
Johnson thereafter grabbed the denim shirt bundle next to Westbrook’s bed,
which he unwrapped to reveal a Browning twelve-gauge shotgun with four
shells in it.
The contradictory story developed by Westbrook’s relatives and
Westbrook himself was that Westbrook had no knowledge of the shotgun,
which was owned by his mother. Westbrook’s relatives believed that Brian had
removed the shotgun from his grandmother’s closet and had taken it to
Westbrook’s room to clean it. Westbrook testified that he saw the shotgun
when he walked by his room and pointed it out to the deputy sheriff, but
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Deputy Johnson testified that he could not tell right away that the object near
the bed was a shotgun because it was wrapped in a denim shirt.
The trial court, as the sole trier of facts, could have weighed the deputies’
testimony more heavily based on credibility determinations than it weighed the
testimony of Westbrook and his relatives. Where, as here, the factfinder
weighs the evidence based on credibility, the factfinder may choose to believe
some testimony and to disbelieve other testimony. See Lancon v. State, 253
S.W.3d 699, 707 (Tex. Crim. App. 2008) (reversing appellate court for holding
evidence factually insufficient based on two conflicting stories). In Lancon, the
court of criminal appeals explained that “an appellate court must give deference
to a [factfinder’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 [factfinder] is in a better position to
judge.” Id. at 706. The trial court was entitled to believe the testimony of the
deputies and to disbelieve the testimony of Westbrook and his relatives, and
this credibility determination does not render the evidence factually insufficient.
See id.
Viewed in the light most favorable to the verdict, a rational trier of fact
could have found from the foregoing evidence and testimony of the deputies
that Westbrook possessed the firearm that the deputies discovered next to the
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bed in his bedroom because he was able to directly point it out to deputies even
though the shotgun was wrapped in a denim shirt. Viewing all the evidence in
a neutral light, the evidence supporting the conviction—though controverted by
the testimony that Westbrook’s son and nephew were sleeping in his bedroom
and that Westbrook did not own the shotgun—is not so weak that the
factfinder’s determination is clearly wrong and unjust. We therefore hold that
the evidence is legally and factually sufficient to prove that Westbrook knew
of, exercised control over, and therefore possessed the shotgun. See Ramos
v. State, Nos. 02-07-00118-CR, 02-07-00119-CR, 2008 WL 623777, at *7
(Tex. App.—Fort Worth Mar. 6, 2008, pet. ref’d) (mem. op., not designated for
publication) (holding that evidence was legally and factually sufficient to
support conviction for unlawful possession of firearm when shotgun was found
in master bedroom closet, which appellant shared with his wife); Smith v.
State, No. 12-06-00021-CR, 2007 WL 2178541, at *3 (Tex. App.—Tyler July
31, 2007, no pet.) (mem. op., not designated for publication) (holding that
evidence was legally and factually sufficient to support conviction for unlawful
possession of firearm when pistol was found in plain view in linen closet next
to bedroom where appellant slept); Austin v. State, Nos. 14-00-01389-CR, 14-
00-01390-CR, 2002 WL 370045, at *3 (Tex. App.—Houston [14th Dist.] Mar.
7, 2002, no pet.) (not designated for publication) (holding that evidence was
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legally and factually sufficient to support conviction for unlawful possession of
firearm that officers found in bedroom closet because closet contained mail
addressed to appellant); Holland v. State, Nos. 05-99-00821-CR, 05-99-00822-
CR, 2002 WL 115582, at *7 (Tex. App.—Dallas Jan. 30, 2002, pet. ref’d) (not
designated for publication) (holding that evidence was legally sufficient to
support conviction for unlawful possession of firearm that officers found in back
center closet that was accessible to appellant). We overrule Westbrook’s two
points.
V. C ONCLUSION
Having overruled Westbrook’s two points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 26, 2009
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