Brandon Derrail Evans v. State ( 2015 )

Opinion issued July 30, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00345-CR
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BRANDON DERRAIL EVANS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 13CR1338
MEMORANDUM OPINION
A jury convicted appellant Brandon Derrail Evans of unlawful possession of
a firearm by a felon, see TEX. PENAL CODE § 46.04(a), and the court assessed
punishment at five years in prison. See id. § 12.34 (third-degree felony
punishment). In a single issue on appeal, Evans contends that the evidence was
insufficient to support the jury’s verdict. We affirm.
Background
At approximately 10:00 p.m. on May 17, 2003, Texas City Police
Department Corporal D. Grandstaff responded to an anonymous tip about three
trespassers in the parking lot of an apartment complex, which was in an area that
recently had experienced numerous convenience store robberies and automobile
break-ins. The trespassers were identified only as “black males” and “suspicious
persons” who did “not belong there.” Corporal Grandstaff drove through the
parking lot with his “alley” lights activated, and he saw three black men sitting in a
parked car. One man was in the front passenger seat, and two men were in the back
seat. Nobody was in the driver’s seat. Appellant Brandon Derrail Evans was seated
in the back, behind the driver’s seat.
The man in the front passenger seat looked at Corporal Grandstaff and then
turned to look toward the floorboard. The two men in the back were bent down, but
they “popped up” and then bent down again twice in quick succession. Corporal
Grandstaff later advised another officer that the men in the back had been reaching
toward the floorboard.
Corporal Grandstaff contacted Texas City Police Officer R. Johnston, who
lived at the apartment complex and served as a “courtesy officer,” monitoring
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suspicious activity when it arose. Although Officer Johnston recognized all the
apartment residents by sight, when he looked at the men in the car he did not
recognize them.
One passenger began to get out, but Corporal Grandstaff ordered him to get
back in the car. Because he smelled marijuana as he approached, Corporal
Grandstaff began to detain all three passengers so that he could safely search the
car. Texas City Police Officer J. Clement then arrived to assist in detaining the
men and searching the vehicle.
Officer Clement removed Evans from the car and asked if he lived at the
apartment complex. Evans responded that he did not live there, but his uncle did.
However, Evans could not identify his uncle by name or say where his apartment
was located.
Officer Clement spotted a gun on the floorboard where Evans’s feet had
been. The gun was partially hidden by a glove and a bag, but the officer testified
that he could see it clearly with only the aid of a flashlight. At trial, he described
the gun as a chrome or steel .357 revolver, which had a filed-off serial number and
which was loaded with “five hollow .38 special rounds.”
Upon searching the rest of the car, the policemen also found several pairs of
gloves, a ski mask, and two hooded sweatshirts. One of the hooded sweatshirts was
found on the back seat on the passenger side. In the pocket of this sweatshirt was
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another handgun. In addition, the officers found a “marijuana roach” on the front
floorboard and a “dime-sized or quarter-sized Ziploc baggy that appeared to have
synthetic marijuana inside.”
Evans was charged with the unlawful possession of a firearm by a felon. At
trial, he stipulated that he had previously been convicted of a felony offense and
that it had been less than five years since his release from confinement for that
offense.
Officer Grandstaff testified that he determined that the owner of the car was
Sharlene White, who told him that her son Germane had used it that night. Neither
Sharlene nor Germane were in the car when the officer approached it in the
parking lot. Sharlene said that Germane had been at a convenience store near the
apartment complex and that the car had been towed.
The jury found Evans guilty of the charged offense, and the court assessed
punishment of five years in prison.
Analysis
In a single issue on appeal, Evans contends that the evidence is legally
insufficient to support the jury’s verdict. In particular, he argues that the evidence
was insufficient to link him to the handgun found in the car.
When evaluating a legal-sufficiency challenge, we consider all of the
evidence in the light most favorable to the verdict and determine whether any
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rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The
standard is the same for both direct and circumstantial evidence cases. Carrizales
v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d
701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh
any evidence, or evaluate the credibility of any witnesses, as this is the function of
the trier of fact. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.–Houston [1st Dist.] 2012,
pet. ref’d).
To prove the offense of unlawful possession of a firearm by a felon, the
State must show that the accused was convicted previously 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 § 46.04(a); James v. State,
264 S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Evans
stipulated that he had been convicted previously of a felony and the fifth
anniversary of his release from confinement for that felony had not yet occurred.
“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
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permit him to terminate his control.” TEX. PENAL CODE § 6.01(b); see James, 264
S.W.3d at 218. “If the firearm is not found on the defendant or is not in his
exclusive possession, the evidence must link him to the firearm.” Williams v. State,
313 S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); accord
James, 264 S.W.3d at 218–19. The evidence must establish that the defendant’s
connection with the contraband was more than fortuitous. See Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). Among the many possible factors that
we may consider to evaluate whether the evidence supports a finding that there is a
link between the defendant and the contraband are whether: (1) the contraband was
in plain view; (2) the defendant was the owner of the location where the
contraband was found; (3) the defendant was in close proximity and had ready
access to the contraband; (4) the defendant’s conduct indicated a consciousness of
guilt, including extreme nervousness or furtive gestures; (5) the defendant had a
special connection or relationship to the contraband; (6) the place where the
contraband was found was enclosed; (7) contraband was found on the defendant;
(8) the defendant attempted to flee; and (9) affirmative statements connect the
defendant to the contraband, including incriminating statements made by the
defendant when arrested. James, 264 S.W.3d at 219. It is not the number of links
that is dispositive, but rather the logical force of all of the evidence, both direct and
circumstantial. Evans, 202 S.W.3d at 162. The absence of various links does not
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constitute evidence of innocence to be weighed against the links present.
Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James, 264
S.W.3d at 219.
On appeal, Evans challenges only the sufficiency of the evidence to prove
that he possessed the gun found on the floorboard. He concedes that he was in the
car and the gun was within his reach. But he argues that there was no evidence as
to how long he had been in the car or whether he could have seen the gun in the
dark. He also contends that it was possible that other occupants of the car had
access to the gun. Finally, he devotes the bulk of his analysis to explaining why the
other links that the Court of Criminal Appeals has identified as relevant are absent
in this case.
Factors 1 and 3: The gun was found in plain view where Evans’s feet had
been before he got out of the car. The first and third factors weigh in favor of the
jury’s verdict. Officer Clement testified that the gun was in plain view—that is, it
was not completely hidden in a bag or completely obscured by other objects placed
on top of it. In addition to his testimony, two photographs of the floorboard as the
officers found it were entered into evidence at trial. The jury was free to rely on
both the testimony and the photographic evidence to determine that the gun was
visible. While the jury was free to consider the fact that it was dark and how that
may have contributed to whether Evans could see the gun, there was sufficient
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evidence upon which the jury could have relied to determine that the gun was in
plain view. See Adames, 353 S.W.3d at 860; Wiley, 388 S.W.3d at 813. Likewise,
Officer Clement testified that the gun was located where Evans’s feet had been
before he got out of the car. This was also depicted in the photographs, which
showed the gun on the floorboard behind the driver’s seat. Evans does not deny
that the gun was within his reach.
Factor 4: Corporal Grandstaff saw Evans repeatedly ducking and reaching
toward the floorboard. Corporal Grandstaff testified that he had his alley lights on
when he entered the parking lot and that he was able to see Evans and the other
two men repeatedly duck down and look out the window toward him. He testified
that this behavior was unusual and made him suspicious. Officer Clement testified
that Grandstaff told him he had seen the men in the car reaching toward the
floorboard. Evans contends that his ducking movements could be explained as a
response to the shining of the bright alley light toward the car. However, it was for
the jury to resolve any such dispute about the significance of the evidence. Because
there was evidence upon which the jury could have relied in concluding that Evans
made furtive gestures, we conclude that this factor supports the jury’s verdict.
Other circumstantial evidence supports the jury’s verdict. In addition, in this
case, the State offered significant other circumstantial evidence upon which the
jury could have relied in concluding that Evans’s connection to the gun was not
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merely fortuitous. Evans, 202 S.W.3d at 161. Corporal Grandstaff testified that the
apartment complex was in an area that had recently experienced numerous
convenience store robberies and automobile break-ins and that there was a
convenience store across the street. It was late at night, and the passengers of the
car were neither apartment residents nor visitors. There was no connection shown
between Evans and the other passengers and the owner of the car, who believed her
car had been towed. Although it was a warm night in Galveston County, two
hooded sweatshirts, a ski mask, and three pairs of gloves were found in the
passenger area of the car. Marijuana, a controlled substance, was found in the car
and the odor of it emanated from the car when Corporal Grandstaff approached.
Finally, the officers found two loaded handguns in the car. The one that was within
Evans’s reach was loaded and bore no serial number because it had been filed off.
Corporal Grandstaff testified that it is illegal for anyone to possess a firearm with a
filed-off serial number. Considering this circumstantial evidence as a whole, the
jury could have reasonably concluded that Evans’s connection to the gun was not
merely fortuitous. See id.
Finally, we are not persuaded by Evans’s argument that the evidence is
insufficient because of the absence of evidence of some of the other links that the
Court of Criminal Appeals has previously identified. Our analysis is not one of
mathematical computation and the absence of various links does not establish his
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innocence. See Hernandez, 538 S.W.2d at 13; James, 264 S.W.3d at 219. We
conclude that a rational jury could have found beyond a reasonable doubt that
Evans possessed the gun that was found on the rear floorboard of the car. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525. We
overrule Evans’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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