JOSE LUIS CRUZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 23, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00819-CR
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JOSE LUIS CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-62893-TV
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OPINION
Before Justices Whittington, Francis, and Lang
Opinion By Justice Lang
        Jose Luis Cruz waived a jury and pleaded not guilty to unlawful possession of a firearm by a felon. After finding appellant guilty, the trial court assessed punishment at five years' imprisonment. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Background
 
        On the morning of February 26, 2006, Dana Grimes received a call from her brother who said his car had stalled on Interstate 30 near the St. Paul exit. Grimes drove to the location and parked behind her brother's car, which was on the shoulder. She saw a red pickup truck angled in front of her brother's car. Appellant sat sideways in the front passenger seat of the truck with his legs outside the truck. A woman was “milling around” the truck. Grimes testified her brother was anxious to leave the area. Her brother got his possessions from the car, locked the doors, then got in the front seat of Grimes's car. The woman with appellant immediately got in the back seat of Grimes's car. The woman said, “[t]ake me away from here because my boyfriend and I have had a fight.” The woman acted distraught and had a bottle of wine in her hands. Grimes drove the woman to a nearby fast-food restaurant, but the woman refused to get out of Grimes's car. When Grimes and her brother tried to force the woman out of the car, she threw the wine bottle against a fence at the restaurant and cursed and threatened them. Grimes and her brother pulled the woman out of the car, then drove away.
        Grimes testified she began to get nervous about leaving her brother's car on the highway. As Grimes drove back to her brother's car, she called the police and said she was worried that a man they saw at the scene would damage or steal her brother's car. Grimes testified she was away from her brother's car for about twenty minutes while she drove the woman to the restaurant. When Grimes returned to her brother's car, the red pickup truck was still there. Grimes testified she parked in front of her brother's car because she was worried about being able to get away quickly. Grimes saw appellant sitting in her brother's car. Appellant waved at her in a friendly manner, then started walking toward Grimes's vehicle. Grimes pulled her vehicle forward slowly to keep a distance from appellant. Appellant turned around, walked toward his truck, picked up something from the ground behind a barricade, then ran towards Grimes's vehicle with an object in his hand. Grimes testified she could not determine what appellant held in his hand. Grimes drove forward again, and appellant stopped running. When the police arrived, Grimes and her brother got out of Grimes's vehicle and walked back to her brother's car. There was a gas can on the ground near her brother's car, and the driver's side window was broken out. The police arrested appellant.         Dallas police officers Gracie Hernandez and Chris Anderson responded to a burglary-in- progress call on Interstate 30 near the St. Paul exit. Hernandez arrived at the scene a few seconds before Anderson. Hernandez testified she saw appellant standing between a red pickup truck and another vehicle, and Grimes and her brother were sitting in a vehicle a few yards away from appellant. When Grimes and her brother saw Hernandez, they got out of their vehicle. After Hernandez talked with Grimes, her brother, and appellant, she arrested appellant for burglary of a vehicle and put him in her patrol car. Hernandez testified appellant was “extremely irate,” used profane language, and intentionally shattered the screen of the mobile data terminal in her patrol car.
        Anderson testified that after appellant was arrested, he asked appellant if the pickup truck belonged to him. Appellant said, “Yes.” Anderson ordered a wrecker to tow the truck, then began an inventory search of the truck, which had front and rear seats. As Anderson approached the opened driver's side window, he saw a “pistol” in plain view sticking up between the rear passenger- side seat and the door. The barrel of the gun was face down between the edge of the seat and the body of the truck on the passenger side, and the handle and cylinder were visible. Anderson took custody of the gun, which had six shells inside. Anderson testified he did not ask appellant for proof of ownership of the truck because appellant said the truck was his. Anderson did not recall to whom the truck was registered.
        Appellant denied ownership of the pickup truck or the gun. Appellant testified he and the woman with him had been drinking the previous night. The woman drove the truck to “get some beer and stuff” the next morning, and appellant accompanied her. Appellant did not know the woman's name because he had only met her the previous night. The woman's truck ran out of gas on the highway. The woman left with Grimes and her brother to get gas for the truck. Appellant admitted he broke out the window of the brother's car so he could open the door to the gas tank. Appellant testified he found a gas can and hose in the pickup truck and planned to use them to siphon gas. Appellant denied he chased after Grimes's car with an object in his hand. Appellant also denied he said the pickup truck belonged to him. According to appellant, he told Hernandez the truck belonged to the woman who left with Grimes and her brother. Appellant did not drive the truck or know a gun was inside the truck. Appellant denied he intentionally kicked the patrol car's terminal. Appellant testified he accidentally hit the terminal as he tried to push himself up in the seat. Appellant further testified he had prior felony convictions for driving while intoxicated and aggravated assault, and misdemeanor convictions for family violence assault and failure to identify.
Applicable Law
 
        In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        The State was required to prove beyond a reasonable doubt that appellant was previously convicted of a felony offense and possessed a firearm at any location other than the premises at which appellant lived. See Tex. Pen. Code Ann. § 46.04(a)(2) (Vernon Supp. 2006); 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. See Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2006). The State had to show appellant exercised actual care, control, or custody of the firearm; he was conscious of his connection with the firearm; and he possessed the firearm knowingly or intentionally. See Bates v. State, 155 S.W.3d 212, 216 (Tex. App.-Dallas 2004, no pet.). When there is no evidence the appellant was in exclusive control of the place where the firearm was found, the State must affirmatively link him to the firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Grantham v. State, 116 S.W.3d 136, 143 (Tex. App.-Tyler 2003, no pet.).
        In determining whether sufficient affirmative links exist, we examine factors such as whether the firearm was in plain view, whether appellant owned the place where the firearm was found, whether he was in close proximity to the firearm and had ready access to it, whether he attempted to flee, whether his conduct indicated a consciousness of guilt, whether the firearm was found in an enclosed space, and whether he made incriminating statements. See Bates, 155 S.W.3d at 216-17. No set formula of facts exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, 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 id.
Discussion
 
        Appellant argues the evidence is factually insufficient to prove he knowingly possessed the gun. Appellant asserts there is no evidence he owned or exercised control over the place where the gun was found, he made no gestures towards the gun, and the gun was hidden in the back seat of a truck owned by someone else. The State responds that the evidence is factually sufficient to support appellant's conviction.
        Grimes saw appellant sitting sideways in the front passenger seat of the truck. After Grimes drove the woman with appellant to a nearby restaurant, Grimes drove back to her brother's stalled car and saw appellant sitting in the brother's car. The police arrived and arrested appellant for burglary of a vehicle. Anderson, who searched the truck after appellant's arrest, saw the gun in plain view inside the truck. The gun was between the rear seat and door on the passenger side of the truck, easily accessible to appellant. Appellant had been alone with the truck for the twenty minutes it took Grimes to drive the woman who was with appellant to the restaurant and return to her brother's stalled car. Appellant had sole custody and control over the truck during that time, retrieving a gas can and hose from the truck to siphon gas. Anderson testified appellant said he owned the truck. Appellant denied acknowledging ownership of the truck, testifying the woman who had already left the scene was the owner of the truck.
        It was the fact-finder's function to resolve any conflicts in the evidence. See Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). The fact-finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). We may not substitute our own determination for that of the fact-finder. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 8.
        Viewing the evidence under the proper standards, we conclude it is factually sufficient to support appellant's conviction for unlawful possession of a firearm by a felon. See Watson, 204 S.W.3d at 415; Bates, 155 S.W.3d at 216-17. We overrule appellant's point of error.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060819f.u05