Robert Clark v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00388-CR
Robert CLARK,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-4987
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phyllis J. Speedlin, Justice

Delivered and Filed: December 10, 2003

AFFIRMED

Robert Clark was convicted of unlawful possession of a firearm. He appeals the judgment of the trial court, arguing that the evidence is legally and factually insufficient to support the jury's finding that he knowingly possessed the firearm. We affirm the judgment of the trial court.

Background

On March 14, 2001, at 11:36 p.m., San Antonio police officer Joel Pope was dispatched to a call from the Knights Inn Motel for an aggravated robbery. When he arrived at the Knights Inn Motel, Officer Pope saw a car leaving the parking lot. The car had its lights turned off. Officer Pope then observed two men standing in the parking lot, jumping up and down and waving their arms. He approached the men, who reported that the man in the car leaving the parking lot had just robbed them. Officer Pope called for back-up assistance, and he and his back-up assistant, Officer Pat Hale, followed the car. It stopped on Village Row. The officers approached the car and removed Clark, the driver and sole occupant of the car, from the car and placed him under arrest. Officer Pope then noticed the butt of a rifle between the two front seats of the car.

Clark was later charged with being a felon in unlawful possession of a firearm. He was convicted at trial and sentenced to fifteen years in prison. He appeals the judgment of the trial court, arguing that the evidence is legally and factually insufficient to support the jury's finding that he knowingly possessed the firearm.

Legal and Factual Sufficiency

The standard for reviewing a legal sufficiency challenge is 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, 320 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. Jackson, 443 U.S. at 320; Johnson, 871 S.W.2d at 186.

The jury is the trier of fact and the ultimate authority on the credibility of witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). It is for the jury as trier of fact to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Even where there is no conflict, the jury may give no weight to some evidence, and thereby reject part or all of a witness's testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding jury as judge of credibility may "believe all, some, or none of the testimony"). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict in a legal sufficiency review. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

To prove unlawful possession of a firearm, the State must prove that the accused knowingly possessed the contraband in question; that is, the State must prove that the accused knew of the weapon's existence and that he exercised care, custody, control, or management over it. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see also Tex. Pen. Code Ann. 46.04 (Vernon 2003). The State can accomplish this task with "affirmative links" that demonstrate that the accused was conscious of his connection with the contraband and knew what it was. Brown, 911 S.W.2d at 747.

Some of the factors that may establish affirmative links include whether 1) the contraband was in plain view; 2) the contraband was conveniently accessible to the accused; 3) the accused was the owner of the place where the contraband was found; 4) the accused was the driver of the car in which the contraband was found; 5) the contraband was found on the same side of the car seat as the accused was sitting; 6) the place where the contraband was found was enclosed; 7) the conduct of the accused indicated a consciousness of guilt; 8) the accused has a special connection to the contraband; 9) occupants of the car gave conflicting statements about relevant matters; and 10) affirmative statements connect the accused to the contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, 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. Id. (citing Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd)).

We find several of these factors present in this case. Joel Pope, the officer who pulled Clark over, testified that he could see the butt of a rifle in plain view as he stood outside Clark's vehicle. He also testified that Clark was the driver and sole occupant of the vehicle. He further testified that the rifle was located between the two front seats, five inches away from Clark where Clark had been sitting in the driver's seat. There was also testimony that Clark drove this car on a regular basis. Viewing this evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support Clark's conviction and overrule Clark's first issue.

Clark also argues that the evidence is factually insufficient to support his conviction. Under a factual sufficiency review, we ask whether "a neutral review of all the evidence . . . 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." Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We must be deferential to the fact finder and careful not to invade the province of the jury to assess the credibility and weight of the evidence. Johnson, 23 S.W.3d at 9.

Upon review of all the evidence, we do find evidence that Clark did not knowingly possess the firearm. Richard Scott, a friend of Clark's, testified that the rifle belonged to him (Scott). Scott further testified that the day before Clark's arrest, Scott borrowed Clark's car and inadvertently left the rifle in it. There was also testimony that Clark's wife, not Clark, was the registered owner of the car. Additionally, Clark himself testified that he lent his car to Scott that day, that the rifle did not belong to him (Clark), and that he (Clark) did not know it was in his car until Officer Pope discovered it.

While this testimony provides some evidence that Clark did not knowingly possess the firearm, the jury was free to believe or disbelieve any and all of this testimony. There was testimony that Clark was the driver and sole occupant of the car, that the rifle was in plain view between the two front seats, and that Clark drove the car on a regular basis. The proof of guilt is not so obviously weak as to undermine confidence in the jury's determination. Thus, upon consideration of the evidence as a whole, we conclude that the evidence is factually sufficient to support Clark's conviction. Accordingly, we overrule this issue on appeal.

Conclusion

Having considered and overruled Clark's legal and factual sufficiency issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

DO NOT PUBLISH