Frank Joe Ramirez v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00077-CR
FRANK JOE RAMIREZ APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellant Frank Joe Ramirez appeals his conviction for unlawful
possession of a firearm by a felon. In two points, Ramirez contends that the
evidence is insufficient to support his conviction and that his co-occupant
girlfriend has a Second Amendment right to own, possess, and bear firearms.
We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
Hood County Sheriff’s Department Investigators Justin Caraway and
James Luckie were investigating an aggravated robbery. The investigators went
to Ramirez’s home looking for a sawed-off shotgun used in the robbery and
found Ramirez in his front yard. The investigators asked if Ramirez knew
anything about a sawed-off shotgun, and he said that he could not possess any
guns because he is a convicted felon but that someone named Chris had tried to
sell him some guns. Ramirez told the investigators that the only gun he had in
the house was a .22 rifle. Ramirez gave the investigators consent to search the
residence. Investigator Caraway saw a .22 caliber rifle near the entryway inside
the residence and bullets on a nearby bookcase. Ramirez told the investigators
that the rifle belonged to his girlfriend, Brenda Poteet, who also lived in the home.
Later that day, Investigator Caraway checked Ramirez’s criminal history
and confirmed that he was a convicted felon. The next day, Investigator
Caraway obtained an arrest warrant, returned to Ramirez’s home, and arrested
Ramirez. The rifle was in the same location as it was on the previous day.
During a custodial interview following the arrest, Ramirez admitted that he
knew the rifle was in the house, that he handled the rifle the day before his
arrest, that he previously handled the rifle to remove a jammed bullet for Poteet,
and that he had constant access to the rifle because it was not secured in a
location out of his access.
2
Ramirez’s brother Roger Montoya testified that he owned the house where
Ramirez and Poteet resided together. Montoya said that Ramirez was working
out of town and that Poteet borrowed the firearm from Montoya for protection
while Ramirez was gone. Montoya was aware of Ramirez’s record and intended
that Ramirez would not have access to the rifle.
Poteet testified that she and Ramirez lived together with his fifteen-month-
old great-nephew and that she borrowed the rifle to protect herself and the child
while Ramirez was working out of town. Poteet explained that she also went out
of town while Ramirez was gone and that he was expected to return after she left
town. She intended to return the rifle to Montoya on her way out of town so that
it would not be there when Ramirez returned home, but she forgot it when she
left.
The jury found Ramirez guilty of unlawful possession of a firearm by felon.
At the sentencing trial, Ramirez pleaded true to one enhancement paragraph and
four habitual paragraphs, and the jury assessed punishment at twenty-five years’
confinement.2
III. SUFFICIENCY OF THE EVIDENCE
2
See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2012) (providing for
enhanced sentence of life or between twenty-five and ninety-nine years’
imprisonment).
3
In his first point, Ramirez argues that the presence of the firearm in his
residence is insufficient to establish that he had actual care, custody, control, or
management of the firearm.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution 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
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 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 most favorable to the verdict.
4
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.
B. Law on Unlawful Possession of a Firearm by a Felon
Section 46.04 of the Texas Penal Code provides in part that a person
commits the offense of unlawful possession of a firearm by a felon if the person
was previously convicted of a felony offense and possessed a firearm after the
conviction and before the fifth anniversary of the person’s release from
confinement. Tex. Penal Code Ann. § 46.04 (West 2011).
The penal code defines possession as “actual care, custody, control, or
management.” Id. § 1.07(a)(39) (West Supp. 2012). A person commits a
possession offense only if he voluntarily possesses the prohibited item. Id.
§ 6.01(a) (West 2011). Possession is voluntary 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. Id. § 6.01(b).
The State must show that the defendant exercised actual care, control, or
custody of the firearm, that he was conscious of his connection with the firearm,
and that he possessed the firearm knowingly or intentionally. Bates v. State, 155
S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.); Smith v. State, 118 S.W.3d
838, 841 (Tex. App.—Texarkana 2003, no pet.). The State’s evidence may be
either direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.
5
Ohio App. 1995). The State does not have to prove that the accused had exclusive
possession of the firearm; joint possession is sufficient to sustain a conviction.
Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d) (citing
Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)). If the firearm is not
found on the defendant’s person or is not seen in the defendant’s exclusive care,
custody, control, or management, the State must offer additional, independent
facts and circumstances that link the defendant to the firearm. Sutton v. State,
328 S.W.3d 73, 76 (Tex. App.—Fort Worth 2010, no pet.) (citing Villarreal v.
State, Nos. 02-07-00329-CR, 02-07-00330-CR, 2009 WL 671042, at *1 (Tex.
App.—Fort Worth Mar. 12, 2009, pet. ref’d) (mem. op., not designated for
publication) (“The . . . links doctrine also applies to the possession of firearms.”));
see Bates, 155 S.W.3d at 216–17. The purpose of linking the accused to the
firearm is to protect an innocent bystander from conviction solely on his fortuitous
proximity to a firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim.
App. 2005).
In determining whether sufficient links exist, an appellate court examines
factors such as whether the defendant owned the premises where the firearm
was found, whether the firearm was in plain view, whether the defendant made
incriminating statements, whether the defendant was in close proximity to the
firearm and had ready access to it, whether the defendant attempted to flee,
whether the defendant’s conduct indicated a consciousness of guilt, whether the
defendant had a special connection to the firearm, and whether the firearm was
6
found in an enclosed space. Smith, 176 S.W.3d at 916; Dixon v. State, 918
S.W.2d 678, 681 (Tex. App.—Beaumont 1996, no pet.). It is the logical force of
the factors, not the number of factors present, that determines whether the
elements of the offense have been established. See Smith, 176 S.W.3d at 916.
C. Sufficient Evidence of Possession
Ramirez does not dispute that he had a prior felony conviction, and the
record establishes that he was convicted in 2005 for the felony offense of failure
to register as a sex offender. He argues that insufficient evidence exists that he
possessed the firearm found in the home he shared with his girlfriend.
Ramirez argues that because he had just returned home from working out
of town, and because the officers found him outside the home, there was
insufficient evidence to show that he knew about the firearm found inside his
home. However, evidence at trial showed several facts linking him to the firearm.
Ramirez did not own the residence, but he lived there and was the only person
present at the time. The investigators found the firearm in plain view leaning
against the wall next to the front door inside the home. Ramirez admitted
knowing that the rifle was in the home, and he told officers after his arrest that he
handled the rifle the previous day and that he had previously handled it to clear a
jammed bullet for Poteet. Ramirez also admitted that he had access to the rifle
at all times because it was not locked or secured in a place that he could not
access.
7
Viewing the evidence in the light most favorable to the prosecution, as we
must, we hold that sufficient evidence exists that Ramirez had actual care,
custody, control, or management of the rifle to support the jury’s verdict. See
Tex. Penal Code Ann. §§ 1.07(a)(39), 46.04; Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778. We overrule Ramirez’s first point.
IV. SECOND AMENDMENT RIGHT OF POTEET
In his second point, Ramirez argues that the fact that Poteet lives with a
convicted felon should not abrogate her Second Amendment right to own,
possess, and bear firearms.
One may not ordinarily claim standing to vindicate the constitutional rights
of a third party. Singleton v. Wulff, 428 U.S. 106, 112–13, 96 S. Ct. 2868, 2873
(1976). The issue of standing involves two distinct questions: whether the
proponent of a particular legal right alleges “injury in fact,” that is, whether the
proponent suffers a concrete injury from the operation of the challenged statute,
and whether the proponent asserts his own legal rights and interests rather than
those of third parties as the basis of the suit. Id.; see Rakas v. Illinois, 439 U.S.
128, 139–40, 99 S. Ct. 421, 428 (1978).
Here, Ramirez is attempting to assert the legal rights and interests of
Poteet, a third party. Because he lacks standing to do so, we overrule his
second point.
8
V. CONCLUSION
Having overruled Ramirez’s two points, we affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 18, 2012
9