Bailey v. State, No. 14-04-00325-CR (TX 2/16/2006)
| Decision Date | 16 February 2006 |
| Docket Number | No. 14-04-00325-CR.,14-04-00325-CR. |
| Parties | ERIC EUGENE BAILEY, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the County Criminal Court at Law No. 2, Harris County, Texas, Trial Court Cause No. 1200162.
Affirmed.
A jury found appellant Eric Eugene Bailey guilty of the misdemeanor offense of possessing a firearm after previously having been convicted of the offense of assault to a family member and before the fifth anniversary of his release from confinement following the assault conviction.1 Appellant pleaded true to an enhancement paragraph, and the jury assessed punishment at 365 days' confinement in jail and a fine of $1,000. In four points of error, appellant argues (1) the trial court erred in denying his motion for a directed verdict, (2) the prosecutor committed misconduct in relation to the admission of evidence, (3) counsel was ineffective in failing to object to inadmissible evidence, and (4) the court erred in admitting evidence (the firearm) for which the State did not establish the proper chain of custody. We affirm.
Officers T.B. Anderson, David Jasper, and Laura Drury, of the Harris County Sheriff's Office, responded to a 911 call from a female reporting a family disturbance and assault at appellant's house. When the officers arrived at the residence, a woman outside informed them her cousin was inside with her cousin's "baby's daddy." The woman also told the officers the man would not let her cousin leave the house and her cousin had screamed for her to call the police.
When appellant answered the officers' knock at the door, he was breathing hard, as though he had been in a fight, and he had blood on his face. Based on these circumstances, Officer Jasper immediately handcuffed appellant and placed him in a patrol car for safety. While Officer Jasper remained with appellant, Officers Anderson and Drury entered the house to check on the woman inside, Wysemuria Willis.
Officers Anderson and Drury entered the bedroom and noticed it was in disarray, as if a struggle had occurred. Officer Drury heard Willis crying in the attached bathroom and when to check on her. According to Drury, Willis was very upset, was screaming and crying, and was covered in blood. Willis told Drury she and appellant had fought. Appellant poked her eye, and her eye was red and swollen. Willis also told Drury appellant had grabbed her by her head and thrown her on to the bed, causing her to cut herself on a vase.
While Drury was attending to Willis, Officer Anderson noticed a gun lying, uncovered, on the bedroom floor near the bathroom door. Anderson seized the gun and gave it to Officer Jasper, who was still outside in his patrol car with appellant. Without being asked, appellant kept yelling the gun belonged to his brother.
Willis, who dated appellant for five years and had a child with him, stated she and appellant leased the duplex together and shared the bedroom in which Officer Anderson found the gun. She also identified items on top of an entertainment center in the bedroom as appellant's wallet, cellular telephone, and keys.
At trial, however, Willis testified to a different version of events than those described by the officers. Willis agreed the argument started in the bedroom, but claimed she started it. She stated appellant did not hit her, and explained she hurt her face when she tripped and fell on the vase she had broken earlier. At one point she went into the bathroom to wash her face, and appellant went in with her. She testified the blood on her sweatshirt was from a previous incident that did not involve appellant and her eye was swollen from crying.
Willis testified appellant's brother, Charles Bailey, owned the gun Officer Anderson seized. According to Willis, Charles left the gun on top of a television in her seven-year-old son's room, where Charles had stayed for the weekend. When Willis found the gun in her son's bedroom, she took it and placed it on top of some clothes in a closet in the bathroom.
Willis testified Officer Drury found the gun in the closet while the officer was "going through [her] things." Willis claimed the gun was never on the floor. She never saw appellant in possession of a gun, and according to her, appellant was not aware of the gun's presence in the closet.
Appellant's brother testified, confirming the gun was his. He claimed he left the loaded gun in the seven-year-old's bedroom. He stated doing so was the result of a "careless mistake."
In his first point of error, appellant argues the trial court erred when it denied his motion for a directed verdict. An appellate court treats a point of error complaining about the trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Evidence is legally sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Id. at 482-83 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)). This standard applies to both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Our duty is not to reweigh the evidence from reading a cold record but to position ourselves "`as a final, due process safeguard ensuring only the rationality of the factfinder.'" Williams, 937 S.W.2d at 483 ().
To establish unlawful possession of a firearm in the present case, the State had to prove appellant was previously convicted of a Class A misdemeanor assault on a member of his family or household and possessed a firearm after the conviction and before the fifth anniversary of the date of his release from confinement following conviction of the misdemeanor. See Tex. Pen. Code Ann. § 46.04(b)(1) (Vernon Supp. 2005); see also TEX. PEN. CODE ANN. § 22.01 (Vernon Supp. 2005) (proscribing assault). Appellant contends the evidence was insufficient to establish the element of possession.
We use the rules adopted for determining the sufficiency of the evidence in cases of possession of a controlled substance to analyze the sufficiency of the evidence in cases involving possession of a firearm. Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Therefore, the State had to prove appellant knew of the firearm's existence and he exercised actual care, custody, control, or management over it. See id. at 38; see also TEX. PEN. CODE ANN. § 1.07 (39) (Vernon Supp. 2005) (). Possession need not be exclusive. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985) ().
When the contraband is not found on the accused's person or is not in the accused's exclusive possession, additional facts must affirmatively link the accused to the contraband. McMillon v. State, 940 S.W.2d 767, 768-69 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). Factors establishing affirmative links may include whether: (1) the contraband was in a place owned by the accused; (2) the contraband was conveniently accessible to the accused; (3) the contraband was in plain view; (4) the contraband was found in an enclosed space; (5) the conduct of the accused indicated a consciousness of guilt; (6) the accused had a special relationship to the contraband; and (7) affirmative statements connect the accused to the contraband. See Corpus, 30 S.W.3d at 38 (); see also Davis v. State, 93 S.W.3d 664, 668 (Tex. App.-Texarkana 2002, pet. ref'd) (). The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Corpus, 30 S.W.3d at 38. The State's evidence must establish the accused's connection with the firearm was more than just fortuitous. Bates v. State, 155 S.W.3d 212, 216 (Tex. App.-Dallas 2004, no pet.). Nevertheless, the link between the accused and the firearm need not be so strong that it excludes every other outstanding reasonable hypothesis except the accused's guilt. See Jennings v. State, 107 S.W.3d 85, 89 (Tex. App.-San Antonio 2003, no pet.) ( defendant's argument resting on premise State's evidence had to eliminate the reasonable hypothesis that appellant was entirely unaware of the presence of the weapon); see also Grant v. State, 989 S.W.2d 428, 433 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (in possession of controlled substance case, stating link between defendant and drugs need not be so strong that it excludes every other outstanding reasonable hypothesis except defendant's guilt).
In the present case, the following evidence affirmatively links appellant with the gun:
• the gun was found in a house appellant leased, and in a bedroom appellant shared, with Willis;
• the gun was in plain view;
• the gun was found a foot and a half from the bathroom door, an area where Willis's testimony placed the defendant shortly before the police arrived;
• there were only two adults in the house at the time of the fight, and given the evidence appellant was beating Willis, a reasonable jury could infer appellant, rather than Willis, exercised control over the gun;
• appellant, without being...
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