JESUS BRIONES DIAZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 2, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01208-CR
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JESUS BRIONES DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-57452-XN
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OPINION
Before Justices Wright, Bridges, and Francis
Opinion By Justice Francis
        A jury convicted Jesus Briones Diaz of unlawful possession of a firearm by a felon and assessed punishment at three years in prison and a $1000 fine. In two issues, appellant contends the evidence is legally and factually insufficient to prove that he possessed the firearm found on the driver's side floorboard of the car he was driving. We affirm.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved any conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        The State was required to prove beyond a reasonable doubt that appellant, a felon, was in unlawful possession of a firearm. See Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2008); see also Martinez v. State, 986 S.W.2d 779, 780 (Tex. App.-Dallas 1999, no pet.). Because appellant does not dispute the proof offered at trial showing his prior felony conviction, the evidence must show appellant possessed the firearm. The sufficiency of the evidence is analyzed under the same rules adopted for determining the sufficiency of the evidence in drug possession cases. Bates v. State, 155 S.W.3d 212, 216 (Tex. App.-Dallas 2004, no pet.). Therefore, the State must prove appellant (1) exercised care, custody, control, or management over the firearm; (2) was conscious of his connection with it; and (3) possessed the firearm knowingly or intentionally. See Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2008); see Bates v. State, 155 S.W.3d at 216. Further, when the firearm is not found on the accused or is not in his exclusive possession, the evidence must affirmatively link him to the firearm. Id. In determining whether sufficient links between appellant and the firearm 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, and whether he made incriminating statements. See id. at 216-17. No set formula of facts exists to dictate a finding of 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 evidence, not the number of links, that supports a fact finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006); Taylor, 106 S.W.3d at 830.
        
        On September 29, 2007, Dallas police officer Daniel Ek sat in his patrol car waiting for a wrecker to tow the vehicle of a man he had arrested for outstanding warrants. Ek saw a white Chrysler pass by him, cross the intersection, and strike a fire hydrant. Ek was parked about three houses from the intersection. Ek radioed for a backup officer and pulled his patrol car forward. He saw appellant exit the passenger door of the Chrysler, then run from the scene. The driver's side door was against a tree and fence. When appellant got out of the Chrysler, he looked at Ek and continued running down the street. Ek, in uniform, followed appellant in the patrol car. Ek yelled out his open window for appellant to stop and after following him about two hundred feet, Ek got out of his vehicle and ordered appellant to get on the ground. Ek handcuffed appellant, patted him down for weapons, and placed him in the back seat of the patrol car.
        Officer Dean Overall responded to Ek's call for backup and saw the wrecked Chrysler. Ek explained what had occurred and asked Overall to take over the “wreck investigation” because Ek already had an individual in custody. When Overall made contact with appellant, he smelled a strong odor of alcoholic beverage and suspected appellant was intoxicated. Appellant told Overall he lived about four blocks from the accident site and was trying to get home. Overall, who is certified to give field sobriety tests, administered the horizontal gaze nystagmus and one-leg stand tests to appellant. Overall testified appellant exhibited six out of six clues of intoxication on the HGN and exhibited a circular sway on the one-leg stand test. During the tests, appellant said he had asthma, but he did not complain about any other medical conditions or injuries. Overall believed appellant did not have the normal use of his mental and physical faculties due to alcohol consumption. He arrested appellant and conducted an inventory search of the Chrysler. When he looked through the passenger-side window, he saw a pistol on the floorboard in front of the driver's seat. Overall retrieved the firearm, a fully loaded .38-caliber Charter Arms revolver, and put it in the trunk of his patrol car. After a wrecker arrived, Overall transported appellant to jail. Overall found that appellant was on parole for murder.
        Appellant's mother and girlfriend testified on his behalf. Rita Mendoza told the jury appellant was still in high school when he pleaded guilty to murder. Appellant spent eight years in the penitentiary before being paroled. He and his girlfriend lived across the street from Mendoza, but they separated “from time to time.” Mendoza said the Chrysler belonged to her, and she was in the process of selling it to appellant's girlfriend. Mendoza conceded she was not in the car with appellant when he hit the tree, and she did not know whether or not appellant had possessed the firearm.
        Myra Garza told the jury the gun found in the Chrysler belonged to her. Garza and appellant lived together with their two children in a house across the street from Mendoza, but sometimes they “split up” due to arguments. The day before appellant was arrested, Garza and appellant argued, and Garza packed her belongings into the Chrysler, intending to drive to her mother's home in Glen Rose, Texas. Garza said she bought the gun from appellant's cousin “D.D.” about four months before, but that appellant did not know she had the gun in the house. Garza wrapped the gun in a towel and put it underneath the driver's seat. Later that day, appellant repaired Garza's Jeep, so she decided to drive the Jeep. The next morning, Garza removed her belongings from the Chrysler and put them into the Jeep, but she did not remove the gun because she forgot it was under the driver's seat. She drove the Jeep to her mother's house. Garza was not in the Chrysler when appellant wrecked it, and she did not know what appellant did after she left town that day.
        Appellant denied possessing the gun found in the Chrysler. Appellant admitted he pleaded guilty to murder and received a twenty year sentence. He served eight years and was paroled in 2001. Appellant told the jury the day before he was arrested for possession of the gun, he and Garza had an argument and she announced she was going to her mother's house. Appellant told her he would repair the Jeep because it ran better than the Chrysler and she would be safer on the road. Garza left the next morning. Later that day, appellant wrecked the Chrysler into a fire hydrant and a tree. Appellant denied drinking while driving, but admitted he had a six-pack of beer in the vehicle. Appellant did not see the gun on the floorboard, and did not know Garza had purchased a gun and kept it in the house for several months. Appellant surmised the gun could have been propelled forward from the impact of the wreck and ended up on the driver's side floorboard.
        After the wreck, appellant got out of the vehicle and walked toward his house, only three or four blocks away. Appellant eventually started running because he wanted to get home to get help and because the neighborhood was not safe. Appellant denied he fled from a police officer, and said he did not hear anyone tell him to stop until a patrol car pulled in front of him and an officer ordered him at gunpoint to get on the ground. When an officer asked appellant to perform the one-leg stand test, appellant told him he could not perform the test because he had just been involved in an accident and had injuries. An officer gave him two traffic citations for not having a driver's license and having an open container.
        Appellant contends the evidence is legally and factually insufficient because he was not the owner of the vehicle where the firearm was found, his own testimony showed he was completely ignorant about the presence of the firearm inside the vehicle, and Garza's uncontroverted testimony showed the firearm belonged to her. The State responds that the evidence is legally and factually sufficient to support appellant's conviction.
        The jury's function is to resolve the conflicts in the evidence, and the jury is free to accept or reject any or all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        Here, despite appellant's claims, police testimony showed appellant was driving the vehicle where a loaded firearm was found in the driver's side floorboard, within arm's reach of appellant. No other person was found inside the vehicle and appellant fled the scene. Viewing all of the evidence under the proper standard, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509; Taylor, 106 S.W.3d at 830.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081208F.U05