Bates v. State

• Decision Date: 13 January 2004
• Docket Number: No. 05-03-00195-CR.,05-03-00195-CR.
• Citation: 155 S.W.3d 212
• Parties: Charles BATES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

155 S.W.3d 212

Charles BATES, Appellant, v. The STATE of Texas, Appellee.

No. 05-03-00195-CR.

Court of Appeals of Texas, Dallas.

January 13, 2004.

Adam Seidel, Dallas, for Appellant.

William T. (Bill) Hill, Jr., Dallas, for State.

Before Chief Justice THOMAS and Justices JAMES and FITZGERALD.

OPINION

Opinion by Justice FITZGERALD.

Charles Bates appeals his conviction for unlawful possession of a firearm by a felon. After finding appellant guilty, the trial court found one enhancement allegation true and sentenced appellant to six years' imprisonment and a $1000 fine. On appeal, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.

FACTUAL BACKGROUND

On April 26, 2002, at 11:50 p.m., Dallas police officers Thomas Tompkins and Julio Ortiz were dispatched to Lisa Watts's house. Watts had called 911 to report telephone harassment, that the man harassing her was on his way to her house, and that he had a gun.¹ Tompkins arrived within fifteen minutes of Watts's 911 call, and he saw a minivan stopped in front of the house. Appellant was sitting in the driver's seat of the minivan. When Tompkins stopped near the house, appellant put the minivan into park, got out of the minivan, and walked to the front of it. Because the call sheet indicated appellant had a gun, Tompkins frisked appellant but did not find a gun. Watts was standing by the front door of the house, and she and appellant were shouting at each other. Tompkins told appellant to sit on the curb while he spoke to Watts.² After speaking to Watts, Tompkins took appellant's identification and called to see if he had any outstanding warrants. After confirming appellant had outstanding warrants, he placed appellant under arrest. Tompkins told appellant he was going to search the minivan, and appellant told Tompkins "he didn't think it was right I should look through his vehicle due to it not being his vehicle." Appellant told Tompkins Ella Hester owned the minivan, and appellant gave Tompkins her telephone number. Tompkins called Hester and told her she could pick up the minivan or it would be impounded.

By this time, Ortiz arrived on the scene. Ortiz searched the minivan, and he found a small drawer-like compartment under the front passenger seat. The compartment was "slightly opened." Inside the compartment was a nine-millimeter semi-automatic handgun with eleven rounds in the magazine. Ortiz testified the gun in the compartment was accessible to a person sitting in the driver's seat depending on his height, and Tompkins testified appellant could have reached the gun.

Tompkins testified Hester arrived to pick up her minivan. Tompkins spoke to her briefly, confirmed she owned the minivan, and released it to her. Tompkins did not ask her about the gun.

Hester testified she had loaned appellant her minivan at about 10:00 p.m. that night. She did not own a gun, and she had not seen appellant with a gun. Hester had a boyfriend, Derek Parmon, who made threats to shoot people, but he had not been in the minivan for the preceding two weeks. Hester used the compartment under the passenger seat to "put my junk stuff and perfumes, stuff you don't want in the dashboard. I throw odds and ends in there." Hester said she used the compartment "mostly when I clean it out I put excessive stuff in there." The compartment was typically not latched, and it would "jump out" when the minivan hit a bump.

Hester testified she received a call from the police about midnight telling her to pick up the minivan or it would be impounded. Appellant's sister drove Hester to the location, and without speaking to the officers or appellant, she got in the minivan and drove away.

Appellant testified he borrowed Hester's minivan and went home. He then telephoned Watts and asked her to return the battery charger for his cordless telephone. Watts told appellant the charger did not belong to him, and she refused to give it to him.³ Appellant told Watts he was coming to her house to pick up the charger, and she told him the police would be waiting for him because she was tired of appellant and his family and because appellant's sister had threatened her. Appellant then drove to Watts's house and knocked on her door. Watts did not open the door, and she told appellant to leave and that the police were coming. As appellant walked back to the minivan, the police arrived. Appellant walked over to the squad car and told Tompkins what was going on, "I told them we were buying a battery charger." Appellant did not have any identification with him, but he told Tompkins his correct name and birth date. Tompkins asked appellant if he had any warrants, and appellant said he did for traffic tickets. Watts then stepped outside and told Tompkins she did not want appellant to go to jail. Tompkins asked appellant if he had anything in the minivan, and appellant told him it did not belong to him and he did not know what was in it. Tompkins asked if he could search the minivan, and appellant told him, "No, I'm — I can't give permission, but I can give you the owner's phone number, and if she said it's okay, it's okay with me." Instead of calling Hester, Tompkins confirmed appellant had warrants, and Ortiz searched the minivan. After Ortiz found the gun, appellant was arrested. The officers asked appellant if the gun was his, and appellant said it was not. Tompkins told Ortiz he could leave, and only appellant and Tompkins were present when Hester and appellant's sister arrived. Hester got in the van and drove away. Tompkins would not allow appellant's sister to speak to appellant. Appellant denied owning a gun, possessing a gun that night, showing a gun to Watts, or knowing about the gun Ortiz found in the minivan. Appellant admitted having been convicted in 1999 of unlawful possession of a firearm by a felon and sentenced to two years' confinement and a $1500 fine.

The indictment alleged appellant had been convicted in 1993 of unlawful delivery of a controlled substance and that appellant possessed a firearm within five years of his release from confinement for this offense. The parties stipulated to evidence appellant was convicted in 1993 of delivery of a controlled substance and was sentenced to eight years' imprisonment.

SUFFICIENCY OF THE EVIDENCE

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App.2001). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

To establish unlawful possession of a firearm by a felon, the State was required to show appellant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Tex. Pen.Code Ann. § 46.04(a)(1) (Vernon Supp.2004); see also Martinez v. State, 986 S.W.2d 779, 780 (Tex.App.-Dallas 1999, no pet.). "`Possession' means actual care, custody, control, or management." Tex. Pen.Code Ann. § 1.07(a)(39) (Vernon Supp.2004). A person commits a possession offense only if he voluntarily possesses the prohibited item. See id. § 6.01(a) (Vernon 2003). "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 permit him to terminate his control." Id. § 6.01(b).

In cases involving unlawful possession of a firearm by a felon, we analyze the sufficiency of the evidence under the rules adopted for determining the sufficiency of the evidence in cases of unlawful possession of a controlled substance. Young v. State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd). Thus, the State was required to prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Nguyen v. State, 54 S.W.3d 49, 52 (Tex.App.-Texarkana 2001, pet. ref'd); see also Corpus v. State, 30 S.W.3d 35, 38 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The State's evidence, which may be either direct or circumstantial, must establish the accused's connection with the firearm was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

If the firearm is not found on the accused's person or is not in the exclusive possession of the accused,...