Tapps v. State
| Decision Date | 06 June 2008 |
| Docket Number | No. 03-06-00468-CR.,03-06-00468-CR. |
| Citation | 257 S.W.3d 438 |
| Parties | Ricky TAPPS, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
H. Viktor Olavson, Austin, TX, for Appellant.
Ronald Earle, District Attorney, Austin, TX, for The State.
Before Justices PATTERSON, PEMBERTON and WALDROP.
We withdraw the opinion and judgment issued April 17, 2008, and issue the following opinion and judgment in their place.
A jury found Ricky Tapps guilty of unlawful possession of a firearm by a felon. After finding two enhancement paragraphs true, the district court assessed sentence at thirty-two years in prison. Tapps raises several issues on appeal. He contends that the evidence is legally and factually insufficient to support the conviction because he is not a felon in the sense intended by the statute and that the State failed to carry its burden of proof to show that he possessed a firearm within the time period prescribed by the statute prohibiting felons from possessing firearms. He complains that the trial court allowed the State to ask a defense witness if she knew Tapps was a sex offender, and contends that the admission of evidence of extraneous offenses was egregious error. He also contends that he received ineffective assistance of counsel because his trial counsel did not object to the admission of the evidence of extraneous offenses. Finally, he contends-and the State concedes-that the judgment should be reformed to reflect that the court found only two enhancement paragraphs true, rather than four. We modify the judgment by eliminating the findings of true regarding two of the four enhancement paragraphs and by correcting the date recited for the commission of the offense, and affirm the judgment as modified.
The eyewitnesses to the incident that resulted in the charges against Tapps — all of whom testified — were the owner, foreman, and employee of a construction company where Tapps had worked as a flagger. Owner Donny Gamblin is the nephew of foreman David Gamblin and the cousin of employee Landin Gamblin. All three testified to the same version of events. The Gamblins' company was installing a water and sewer main on Thompson Lane, near Callahan's General Store in Austin. Around 5 p.m. on Friday, January 20, 2006, Donny and David were discussing the project at the construction site, while Landin and the other employees waited about half a mile away at the "staging area." Friday is payday at the company and paychecks are handed out at the jobsite. Nearby businesses were closed or closing because of the lateness of the hour.
Tapps drove up in a tan Oldsmobile with a dark top. He left the car running, and approached David and Donny. Tapps believed he was owed a week's pay, but the Gamblins believed he had been paid in full. During the conversation between Tapps, David, and Donny, Landin arrived. The Gamblins testified that the discussion did not get heated, although Tapps, who was normally quite calm, seemed agitated. The discussion lasted about ten minutes and, according to Donny, was becoming repetitive. Landin then noticed and mentioned to Tapps that the Oldsmobile was slowly rolling backwards. The Gamblins testified that they then heard a loud sound, like a tire blowing out or a car backfire. Then they noticed that Tapps was holding a black .38 revolver. They had not seen him retrieve it, but surmised that the gun had been in one of his pockets where his hands had been. They also noticed a dime-sized bullet hole in the right front side of the tan Oldsmobile. David and Landin testified that Tapps told them he had more firearms in the car's trunk.1 Tapps did not point the revolver at the Gamblins or directly threaten them. The Gamblins did, however, retreat to their respective vehicles, and David and Donny called the police. The Gamblins and Tapps then left the construction site in their cars. The Gamblins waited for the police nearby. Tapps was arrested at his home eleven days later. There were no firearms, ammunition, or a tan Oldsmobile at the house where he was arrested.
Tapps's friend, Marie Higgins, testified that she owns a 1990 Oldsmobile Regency that is tan with a brown top. She testified that she let Tapps sleep at her house that winter because his house lacked utilities. She said she loaned him the vehicle on January 20, 2006, roughly between 5 p.m. and 7 p.m. She testified that she was not aware of any bullet hole in her car before he borrowed it or after he returned it. She testified that Tapps seemed happy before he borrowed the car and when he returned it. She also testified in response to questioning by the State that Tapps had not told her and she had not known that he was a convicted sex offender.
At trial, the defense brought the tan Oldsmobile to the courthouse and requested a jury inspection of the car. The record reflects that the jurors inspected the car in the courthouse garage. The record does not reflect what that inspection revealed and no photographs of the car were admitted into evidence. However, counsel for both Tapps and the State acknowledged in final argument that the relevant section of the car appeared undamaged, although the prosecutor noted that the incident had occurred on January 20 and the defense produced the car for inspection by the jury on July 11. Other than the visual inspection, the record does not reflect any other testing or examination of the car by either the State or the defense.
Tapps was convicted of being a felon in possession of a firearm. The statute provides in relevant part as follows:
A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.
Tex. Penal Code Ann. § 46.04(a) (West Supp.2007). Evidence showed that Tapps was convicted of the state jail felony of failure to comply with sex offender registration on December 14, 2004. See Tex. Code Crim. Proc. Ann. art. 62.102 (West 2006). Tapps was sentenced to seven months in state jail, and was to get credit for 133 days time served.
Tapps contends that the evidence of his guilt is insufficient as a matter of law because there was no evidence he was a convicted of the type of felony that is covered by section 46.04. Tapps does not challenge the veracity of the evidence of his 2004 conviction, but argues that a state jail felony is not a felony for purposes of the firearm possession statute. Tapps acknowledges that the statute defining "felonies" includes state jail felonies:
(a) Felonies are classified according to the relative seriousness of the offense into five categories:
(1) capital felonies;
(2) felonies of the first degree;
(3) felonies of the second degree;
(4) felonies of the third degree; and
(5) state jail felonies.
(b) An offense designated a felony in this code without specification as to category is a state jail felony.
Tex. Penal Code Ann. § 12.04 (West 2003); see also id. § 1.07(23) (West Supp.2007) ().2 Tapps relies on a court of criminal appeals opinion that recognized a distinction between felonies and state jail felonies in a statute governing enhancement by previous offenses. See Campbell v. State, 49 S.W.3d 874 (Tex.Crim.App. 2001). The statute at issue in that case provides that, when a person is on trial for a state jail felony, proof of two prior convictions for "state jail felonies" enhances the punishment to that of a third-degree felony, while proof of two prior convictions for "felonies" enhances the punishment to that of a second-degree felony. Tex. Penal Code Ann. § 12.42(a) (West Supp.2007). The Campbell court held that, "as used in subsection 12.42(a), the terms `felony' and `state jail felony' are mutually exclusive." 49 S.W.3d at 878 (emphasis added).
This distinction between state jail felonies and other felonies does not appear in the statute governing unlawful possession of a firearm which is at issue here. See Tex. Penal Code Ann. § 46.04. This statute refers only to a person convicted of "a felony." The absence of any language in section 46.04 indicating an intent to treat felonies and state jail felonies differently distinguishes this statute from the statute at issue in Campbell. The consistent use of the unmodified term "felony" in section 46.04 indicates that there is no distinction in this statute between levels or types of felonies. See Tex. Penal Code Ann. §§ 12.04, 46.04. Since there is no indication of a legislative intent for the term "felony" not to include state jail felonies in section 46.04, we apply the general definition of "felony" found in section 12.04. Tapps's 2004 conviction for a state jail felony was sufficient to make him a "person convicted of a felony" pursuant to the statute prohibiting the possession of a firearm by a felon.
Tapps also contends that the State failed to meet its burden of proof because the evidence was insufficient as a matter of law to show that he was released from confinement within five years of the offense at issue in this case. A convicted felon commits a crime by possessing a firearm during the period "after conviction and before the fifth anniversary of the person's release from confinement following conviction." Tex. Penal Code Ann. § 46.04(a)(1). Tapps argues that, because there is no evidence that he was "released from confinement," the State failed to carry its burden of proof to show that he, in fact, possessed a firearm within the period prescribed by the statute.
Tapps relies on the proposition that an element of the offense that the State was required to prove is that he possessed a firearm "before the...
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