Edward Anthony Tellez v. State ( 2011 )

NUMBERS 13-11-00071-CR
13-11-00103-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EDWARD ANTHONY TELLEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Edward Anthony Tellez challenges his conviction for unlawful
possession of a firearm by a felon (appellate cause number 13-11-00071-CR) and the
revocation of his community supervision because of that offense (appellate cause
number 13-11-00103-CR). See TEX. PENAL CODE ANN. § 46.04(a)(1) (West Supp. 2010).
In one appellate issue relevant to both cause numbers, Tellez argues that the evidence
was insufficient to support both his conviction and the revocation. We affirm.
I. BACKGROUND1
In 2005, Tellez was convicted of aggravated assault. He was sentenced to seven
years for that offense, but the sentence was suspended and he was given a seven-year
term of community supervision. In December 2010, Tellez was indicted for unlawful
possession of a firearm by a felon in connection with a home visit by his probation officer
at which multiple guns were found at Tellez's court-listed residence in Rockport, Texas.
The State also filed a motion to revoke Tellez's community supervision because of the
discovered firearms, alleging as grounds that Tellez violated the law by possessing
multiple firearms as a felon.
Tellez pleaded not guilty to the indicted offense and "not true" to the alleged
violations of his community supervision. Both the offense and revocation were tried to
the bench in the same proceeding. After the close of evidence, the trial court found
Tellez guilty of unlawful possession of a firearm and sentenced him to ten years'
confinement in the Institutional Division of the Texas Department of Criminal Justice.
The trial court also revoked Tellez's community supervision and sentenced him to the
previously assessed seven-year term of confinement for the underlying aggravated
assault conviction. The sentences were ordered to run concurrently. This appeal
followed.
1
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
II. DISCUSSION
The trial court based both Tellez's conviction and his revocation on the same
evidence presented at one proceeding. By one issue challenging that evidence, Tellez
argues that: his firearm possession conviction was not supported by legally sufficient
evidence; and the revocation of his community supervision was not supported by a
preponderance of the evidence.
A. Legal Sufficiency
In a sufficiency review, courts examine the evidence in the light most favorable to
the verdict to determine whether "any rational fact finder could have found guilt beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson legal-sufficiency standard is
the only standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt."). This standard requires reviewing courts to resolve
any evidentiary inconsistencies in favor of the judgment, keeping in mind that the fact
finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to
give their testimony. Brooks, 323 S.W.3d at 899. Appellate courts do not re-evaluate
the weight and credibility of the evidence; they only ensure that the fact finder reached a
rational decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
Legal sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge
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is one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the
defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. In
this case, Tellez committed the offense of unlawful possession of a firearm by a felon if he
was convicted of a felony and possessed a firearm "after conviction and before the fifth
anniversary of [his] . . . release from supervision under community supervision." See
TEX. PENAL CODE ANN. § 46.04(a)(1). It is not disputed that Tellez had been convicted of
a felony and that he was still under community supervision at the time the guns were
found at his court-listed residence.
B. Revocation
We review an order revoking community supervision for an abuse of discretion.
Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
In a community supervision revocation hearing, the State need only prove its allegations
by a preponderance of the evidence. Jones v. State, 112 S.W.3d 266, 268 (Tex.
App.—Corpus Christi 2003, no pet.); Herrera v. State, 951 S.W.2d 197, 199 (Tex.
App.—Corpus Christi 1997, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex.
Crim. App. 1993)). This standard is met when the greater weight of the credible
evidence creates a reasonable belief that the defendant violated a condition of his
community supervision as the State alleged. In re B.C.C., 187 S.W.3d 721, 724 (Tex.
App.—Tyler 2006, no pet.) (citing Cobb, 851 S.W.2d at 873). The trial court is the trier of
facts in a revocation proceeding and the sole judge of the credibility of witnesses and the
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weight to be given to the testimony. Canseco, 199 S.W.3d at 439. We examine the
record of the revocation proceeding in the light most favorable to the trial court's ruling.
Id.
C. The Evidence
At the bench trial, Kori De Los Santos, Tellez's probation officer, testified that on
November 15, 2010, she went to the address Tellez listed as his residence with the
community supervision office for a home visit. The residence was located in Rockport,
Texas. The purpose of the visit was to determine compliance with certain community
supervision requirements, such as ensuring there were no alcohol, drugs, or firearms in
the home. After Tellez consented, De Los Santos looked around the residence, and
Tellez led De Los Santos to the room he identified as his bedroom. While in the
bedroom, another probation officer, who had accompanied De Los Santos for the home
visit, discovered a brown rifle case. When asked if he knew what was in the case, Tellez
responded that he did not. Tellez then opened the case, in which De Los Santos
observed a rifle with a scope.2 De Los Santos testified that Tellez became agitated when
the rifle was discovered.
Later on the same day, De Los Santos returned to the residence with an Aransas
County Sheriffs Department deputy. With Tellez's consent, Deputy Leonardo Ovalle
searched the residence and discovered a gun cabinet with numerous additional firearms
and ammunition. Tellez told Deputy Ovalle that he did not own any of the guns. On
cross-examination, Deputy Ovalle testified that no attempts were made to lift fingerprints
2
Kyle Ruschhaupt, the other probation officer who accompanied De Los Santos, testified similarly
about the events of the November 15 home visit.
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from the guns.
Tellez testified on his own behalf. He testified that he does not live at the address
in Rockport and that he has lived in Corpus Christi with his girlfriend for "about four years."
Tellez testified that the Rockport address he listed as his residence was actually his place
of work; Tellez's family lived at that address at one point, but Tellez now used it only as an
office for his towing and mechanic work. Tellez admitted that he lied to his probation
officer about his residence. He testified that he never spent the night at the Rockport
address. He acknowledged that one of his community supervision conditions is to report
any changes of address, but he listed the Rockport address so he could report to his
probation officer easily while he was at work in Rockport.
Tellez testified that he used only the offices that were in the front of the building
and never went back to the other parts of the building, including the room he told De Los
Santos was his bedroom. Tellez denied knowing that the guns were being stored at the
Rockport address. He testified that the guns had belonged to his deceased father, who
was a hunter.
De Los Santos's mother, sister, and girlfriend testified next. His mother testified
that she stored the guns in their old home because, after Tellez's father died, she planned
to sell them. Tellez's mother testified that Tellez did not know the guns were there.
Tellez's sister testified that no one had lived at that address since January 2006. She
testified that the sheetrock was caving in and the house was infested with bugs and
rodents. Tellez's girlfriend confirmed that he had been living with her at various
addresses in Corpus Christi for the past four years. Through Tellez's girlfriend's
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testimony, the defense admitted utility bills from addresses in Corpus Christi on which
Tellez was listed as the account holder.
Finally, the State re-called De Los Santos. De Los Santos testified that Tellez's
mother visited her at her office after the guns where found at the Rockport address. With
regard to the unlawful possession charge and the potential revocation of Tellez's
community supervision, Tellez's mother asked De Los Santos "to look the other way this
one time because [Tellez] was a good person."
D. Analysis
Tellez argues that, based on the foregoing evidence, it was both irrational for the
trial court to convict him and unreasonable for the trial court to revoke his community
supervision. Specifically, Tellez argues that the State failed to prove he possessed the
guns because evidence clearly showed that: he did not reside at the address where the
firearms were found; the condition of the building was not fit for living; and he was
"honest, cooperative, and compliant" when confronted by the weapons. We disagree.
Tellez admitted at trial that he lied to his probation officer about where he lived.
Although Tellez attempts to characterize this as evidence that he did not possess the
discovered guns, the trial court could have also considered it evidence of Tellez's lack of
credibility and would not have been irrational in doing so. Similarly, the trial court could
have disbelieved the testimony of Tellez's mother, sister, and girlfriend regarding Tellez's
knowledge of the weapons and credited the testimony of his probation officer, whose
testimony was strong circumstantial evidence of possession. According to De Los
Santos, the guns were discovered at the address Tellez represented to be his residence
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and in the room of the home Tellez represented to be his bedroom. Moreover, Tellez
became agitated when the guns were found. In short, we cannot conclude the trial court
acted irrationally in weighing the evidence in the manner it did and in determining beyond
a reasonable doubt that Tellez committed the offense of unlawful possession of a firearm.
See Brooks, 323 S.W.3d at 895, 899; Laster, 275 S.W.3d at 517. Likewise, examining
the record in the light most favorable to the trial court's ruling, we conclude that the
evidence amounted to more than preponderance, and the court did not abuse its
discretion in revoking community supervision. See Cobb, 851 S.W.2d at 873; see also
Canseco, 199 S.W.3d at 439. Tellez's appellate issue is overruled.
III. CONCLUSION
We affirm both the judgment of conviction (appellate cause number
13-11-00071-CR) and the judgment revoking Tellez's community supervision (appellate
cause number 13-11-00103-CR).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 1st
day of December, 2011.
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