Fire Insurance Exchange v. Judy Kennedy ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00413-CR
ANTHONY SCOTT GORDON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Anthony Scott Gordon of unlawful possession of
a firearm by a felon and upon his plea of true to the enhancement allegation,
assessed his punishment at twelve years’ confinement. The trial court sentenced
him accordingly. Appellant brings a single point on appeal, challenging the
sufficiency of the evidence. Because the evidence is sufficient to support the
jury’s verdict, we affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
Through a series of text messages, investigators Ray Miller and Justin
Caraway arranged to meet two men at a convenience store in Hood County for
the purpose of buying a half pound of marijuana for $650. Miller and Caraway
arranged to have uniformed, backup officers hidden near the convenience store
and decided to arrest whoever showed up without making any attempt to
purchase the marijuana. When the car in which Appellant was riding arrived at
the convenience store, the officers stopped the car, arrested Appellant and the
driver, Jason Michael May, and searched the car and the two men. The officers
found a cell phone in Appellant’s possession, and on the front passenger
floorboard, they found a baggie with 1.6 ounces of marijuana and another baggie
containing a nickel-plated nine millimeter handgun. The handgun held a fully
loaded magazine plus one round in the chamber. The officers found a black ski
mask in the rear passenger seat, a silver-bladed knife under the back seat, and a
slim jim in the car’s trunk. There is no evidence that anyone checked to
determine if the handgun was registered to any particular person, nor did anyone
check the handgun for fingerprints. When asked about the gun, Appellant denied
that it was his. The cell phone that the officers removed from Appellant’s
possession contained pictures of Appellant and also contained text messages
consistent with those sent and received by the investigators while they arranged
for the marijuana purchase.
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 verdict to
2
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.2
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.3 The trier of fact is the sole judge of
the weight and credibility of the evidence.4 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.5 Instead, we
Adetermine 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.”6 We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution.7
2
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
3
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
4
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).
5
Will. v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
6
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
7
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.
3
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.8
As the State correctly sets out, it bears the burden of proving that
Appellant was previously convicted of a felony offense and that he 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 is later.9 Appellant challenges only the sufficiency of the evidence of
the nexus between him and the handgun found in the car.
To sustain its burden of proving a sufficient nexus between Appellant and
the handgun, the State must prove that possession of the firearm is a voluntary
act.10 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 sufficient
time to permit him to terminate his control.11 The State must show that Appellant
exercised actual care, custody, or control of the firearm; that he was conscious of
his connection with the firearm; and that he possessed the firearm knowingly or
8
Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13.
9
See Tex. Penal Code Ann. § 46.04 (West 2011); Hawkins v. State, 89
S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
10
See Tex. Penal Code Ann. § 6.01(a) (West 2011).
11
Id. § 6.01(b); Hawkins, 89 S.W.3d at 677.
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intentionally.12 It is not necessary that the State prove that Appellant had
exclusive possession of the firearm.13 Proof of joint possession is sufficient to
sustain the State’s burden.14 Evidence of knowing or intentional possession of
the firearm may be direct or circumstantial.15
Appellant argues that the evidence is insufficient to provide an affirmative
link between him and the firearm because no one saw him handle the weapon;
he testified that it was not his gun; his fingerprints were not found on the gun or
on the bullets; despite Miller’s testimony to the contrary, the picture on his cell
phone of a hand holding a gun was not clearly identified as Appellant’s hand
holding the confiscated gun; the gun was not in plain view when the police found
it; he was in the car for only a short period of time; he did not possess other
contraband; he did not flee; he did not own the vehicle; and the place where the
gun was found was not enclosed.
Viewing the evidence in the light most favorable to the jury’s verdict, we
note that the record shows that Appellant was seated in the front passenger seat
of the car. The fully loaded firearm and the marijuana were both located at his
12
See 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.).
13
See Bates, 155 S.W.3d at 216; Hawkins, 89 S.W.3d at 677.
14
Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Smith v. State,
176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d).
15
Hawkins, 89 S.W.3d at 677.
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feet. The text messages setting up the buy came from the cell phone found in
Appellant’s possession. The person sending the text messages to the
investigators said, “My boy brought me.” Indeed, Appellant was the passenger
and was being driven by May. The investigators testified that they were afraid
the person texting them was planning to rob them because he instructed them to
separate. Their suspicions were confirmed when they discovered that Appellant
had brought a fully loaded handgun and significantly less than the half pound of
marijuana that they had agreed to purchase.
Applying the appropriate standard of review, we hold that a rational jury
could have found the circumstances sufficient to prove to them beyond a
reasonable doubt that Appellant knowingly possessed the firearm. We overrule
Appellant’s sole point and affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 20, 2012
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