YORDANOS HAILESLASSIE A/K/A YOUDANOS HAILESLASSIE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued May 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00517-CR
No. 05-07-00518-CR
............................
YORDANOS HAILESLASSIE A/K/A YOUDANOS HAILESLASSIE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F06-71989-L, F06-87576-L
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OPINION
Before Chief Justice Thomas and Justices Whittington and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant appeals following her conviction for unlawful possession of a firearm by a felon and the revocation of her community supervision for possession of cocaine in an amount of four grams or more but less than 200 grams. The trial judge assessed punishment at five years' imprisonment in each case. In five issues, appellant challenges the sufficiency of the evidence to support the new conviction and the probation revocation, and asks that the judgments be modified to correctly reflect the trial court proceedings. We affirm the judgments as modified.
 
Background
 
        In the cocaine possession case, appellant pleaded guilty on September 26, 2006. Pursuant to the plea bargain agreement, the trial court assessed punishment at eight years' imprisonment, probated for four years, and a $2000 fine. Appellant was subsequently indicted for being a felon in possession of a firearm. Based on the new offense, the State filed a motion to revoke appellant's community supervision. The two cases proceeded before the trial court in a single proceeding.
        Dallas police officer Brad Williams testified that on October 26, 2006, Williams, Sgt. Nichols, and other officers were conducting surveillance in the area around a motel at 11535 Plano in response to complaints about drug dealing. Using binoculars, the officers narrowed the dealing to two rooms and mostly by a female who went in and out of both rooms. Williams was about 150 yards away. From that distance he could tell race, sex, and what colors the female was wearing. Williams identified the female as appellant.
        On October 26, Williams saw appellant leave the room, walk out into the middle of the side street that runs on Plano and lean inside a blue Honda Accord that was occupied by an Asian male. Because it appeared to Williams to be “some sort of transaction” the officers went up to investigate. The car sped off. The officers grabbed appellant and detained her to investigate the suspected drug deal. Appellant was handcuffed based on Garland warrants and searched by a female officer. The officer found empty baggies of the type “they normally package cocaine in” and over $4000 in appellant's pocket. When Garland could not confirm the warrants, the police released appellant. Because of the lateness of the hour, the police ended their surveillance.
        The officers resumed surveillance of the motel rooms on October 27, 2006. Williams saw basically the same activity-“[t]wo rooms apart, in and out of both rooms, people coming up, drug transactions being done at basically both doors and outside of cars.” Williams again saw appellant interacting with people who came to those rooms. After other officers arrested a couple of people leaving the rooms, Williams and Nichols “did a knock and talk” on both rooms. They knocked three or four times and could hear movement in the room, but no one came to the door. Eventually appellant answered the door and Nichols talked to her. Appellant said it was her room and gave the officers consent to search it.
        Because it was a situation involving drugs and money, the officers were concerned about guns also being present. Two males were in the room with appellant and a white female was in the other room. The officers had seen one of the males enter just before they went to the room. Williams and Nichols had the people go outside while they searched the room for drugs. The officers found several baggies with residue and a large Ziploc baggie next to the toilet. It was soaking wet. Williams found a purse “on the floor or on the bed, right by the nightstand.” Williams explained there were two beds in the room and the purse was on the bed farthest from the door. When Williams looked in the purse, he found mail bearing appellant's name and a plastic bag full of .22-caliber ammunition. After finding the ammunition, Williams believed there was probably a gun in the room. He found the gun under the mattress of the same bed the purse had been on. The gun was loaded with ammunition of the same brand and caliber found in the purse. The firearm was in good working order. Williams did not speak to appellant about either the handgun or the purse.         On cross-examination Williams testified he found no drugs on appellant or in the room, did not run a registration on the firearm, and learned the room was not registered to appellant. The two men who had been in the room were not charged and were released. When asked if appellant had a purse on October 26, Williams answered “No, she had it in her pocket.” Williams did not remember any other identification being in the purse. He remembered only the mail. He testified that if there had been other identification in the purse, the police probably would not have charged appellant with possession of the gun. Williams was not concerned that the purse belonged to the men in the room. He used his common sense in concluding the purse belonged to appellant. Williams admitted the probable cause affidavit and arrest report did not mention the surveillance. Williams confirmed “at the time” appellant had been convicted of delivery of a controlled substance.
        Dallas police sergeant Lawrence L. Nichols testified that on October 27, 2006, he and his squad were conducting enforcement in and around the motel in response to complaints of drug dealing. When Nichols and Williams knocked on the door of the motel room, appellant answered. Appellant told the officers the room was hers. The officers told appellant what they had observed and that they had gotten complaints about drug activity in that room. The officers asked if they could search the room for any kind of illegal drugs. Appellant gave the officers consent to search. For safety reasons, the occupants were asked to step outside.
        During the search, the officers found some empty baggies, luggage, clothing, and a purse on the bed with a baggie of .22-caliber ammunition in it. After the officers found the bullets in the purse, Williams lifted up the mattress of that side of the bed and found the firearm under the mattress. No one was sitting on that bed when appellant came to the door. The other two individuals in the room were sitting on the opposite bed. The .22-caliber bullets found inside the gun were of the same type as those found in the purse. After the gun was found, Nichols held the purse up and asked appellant if it was her purse. She said it was. Nichol concluded the firearm belonged to appellant based on her presence in the room, her admission the room and purse were hers, mail found in the purse bore her name, and the ammunition in the purse matched the ammunition in the gun. Based on Nichols's training and experience, he believed appellant had “care, custody and control of that firearm.” Nichols later learned appellant was a convicted felon.
        On cross-examination Nichols testified pictures were taken of the scene in connection with the accidental discharge of the weapon while Williams was trying to clear it. Nichols had not, however, seen the pictures. He assumed they were with the crime scene detectives. Nichols confirmed that much of the testimony he had given during trial did not appear in the arrest report, but he testified he did not write the report. He further testified there was only one purse in the room.
        Fabien Neil testified on appellant's behalf. Neil knew appellant “[t]hrough mutual friends.” On October 27, 2006, Neil was moving because she had been evicted. Neil was taking her “stuff” to storage, but took some of her belongings to a motel because it was “the closest place to take it at the time until the person could take my TV to the storage.” Before she was evicted, Neil had lived in an apartment with appellant for a period of time. Appellant was getting mail at the apartment. Appellant and two other people were helping Neil move on October 27, and were taking some of the items to the motel. The motel room was registered to a friend of Neil's. Neil claimed the .22- caliber gun found in the motel room was hers. She had taken it to the motel room and put it between “the mattress under the box spring.” There were bullets to the gun in the purse. No one knew she was moving the gun, no one saw her move it, and no one was in the motel room when she put it under the mattress. Neil inadvertently left her purse in the motel room. Someone later picked up the purse from the property room for her. Appellant had some mail in the purse.
        Before appellant was indicted, Neil gave defense counsel an affidavit that stated basically what she had testified to at trial. Nothing was discussed at that time about bullets, so the affidavit contained nothing about bullets. Neil later admitted to defense counsel the bullets were hers as well.
        On cross-examination Neil testified she did not know the brand of the gun or what type of bullets it fires. She had never shot the gun before. She testified she bought it off the street from a friend of a friend. She did not know the seller's name, nor could she describe him. Neil testified she bought the gun the week she was evicted from her apartment and paid $100 for it.         Appellant testified the police knocked on the door. She told one of the guys to answer the door. The man looked though the door and said it was the police. Appellant opened the door “because this don't have nothing to do with me. This is her room and I'm her friend, so I opened the door.” She did not tell the police the room was hers. Appellant testified she neither consented nor denied consent to the police to search the room. She did not make any statement to the police that the purse was hers. She testified the police told her to sit down and handcuffed her and claimed the room was hers. Appellant testified the officers assumed the purse belonged to her because she was the only woman in the room. However, she never said the purse belonged to her. Appellant testified she had just gotten out of jail on probation about three weeks before. She had not been doing any drugs or selling any drugs or anything like that. She testified the money she had on October 26 came from working for her father to pay her probation fees.
        When asked whether cocaine had been sold from the room in the twenty-four hours before her arrest, appellant responded, “I don't know. I was not there for 24 hours.” Appellant had never seen the gun before. Appellant also did not know Neil had a gun because Neil “is not one of those people that gets in trouble.” Appellant admitted she was on probation at the time she was arrested on the gun charge. Although she did not want to say the police were lying, “they did say a lot of false things.”
        After the defense rested, the State recalled Williams for further re-direct examination. He confirmed that before trial began, he remembered seeing a “heavy-set African American girl” sitting in the hallway who said her name was “Fabien.” Williams, however, never saw this person enter or leave the motel room during the twenty-four hour period before appellant's rest. Nor did Williams ever see appellant with a television set.
Standards of Review and Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we review all of 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 crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004).
In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, “albeit to a very limited degree.” See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. The standard of proof in revocation hearings is by a preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Under each of these standards, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Lancon v. State, 2008 WL 2081638, at * 5 (Tex. Crim. App. May 14, 2008); Rickels, 202 S.W.3d at 764; Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).         To obtain a conviction for unlawful possession of a firearm by a felon, the State had to prove beyond a reasonable doubt that: (1) appellant; (2) knowingly or intentionally; (3) possessed a firearm; (4) after having been previously convicted of a felony. See Tex. Penal Code Ann. § 46.04(a) (Vernon Supp. 2007). To support the revocation of appellant's community supervision, the State had to prove each of the elements by a preponderance of the evidence.         “Possession” is defined as “actual care, custody, control, or management.” Id. § 1.07(a)(39). When a defendant is not in exclusive control of the premises where the firearm is found, the State is required to link her to the firearm. See Evans v. State, 202 S.W.3d 158, 161 & n.9 (Tex. Crim. App. 2006). In determining whether a defendant is linked to the firearm, we examine the following factors: (1) whether the firearm was in plain view; (2) ownership of the place where the firearm was found; (3) the defendant's close proximity or ready access to the firearm; (4) any attempt to flee; (5) conduct indicating a consciousness of guilt; (6) whether the firearm was in an enclosed space; and (7) whether the defendant made any incriminating statements. See Bates v. State, 155 S.W.3d 212, 216-17 (Tex. App.-Dallas 2004, no pet.). It is the logical force of the circumstantial evidence, not the number of links present, that supports a verdict. See Evans, 202 S.W3d at 166; Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.).
 
Analysis
 
        Appellant does not challenge the sufficiency of the evidence to show she had a prior felony conviction. She challenges only the sufficiency of the evidence to link her to the firearm. The State responds that there is sufficient evidence linking her to the firearm.
        The evidence shows that for two successive nights, police conducted surveillance on two motel rooms and observed appellant go in and out of the rooms. The firearm was found between the mattress and box springs of a bed in one of the rooms. A purse containing mail with appellant's name on it and ammunition of the same caliber as the firearm was found on top of the mattress under which the firearm was found. On the night of her arrest, appellant told the police the purse was hers, but she later denied making that statement. Appellant was the only woman in the motel room at the time of her arrest. Although Neil testified the firearm was hers, the police had never seen this other woman during their surveillance of the motel rooms.         It was the trial judge's role to determine the credibility of the witnesses and the weight to be given their testimony. Viewing the evidence under the appropriate standards, we conclude it is sufficient to link appellant to the firearm. Thus, we conclude the evidence is both legally and factually sufficient to support the conviction for unlawful possession of a firearm by a felon. We resolve appellant's first two issues against her.
        Having concluded the evidence is sufficient beyond a reasonable doubt to support the conviction for unlawful possession of a firearm by a felon, we likewise conclude the preponderance of the evidence supports the probation revocation based on the firearm possession allegation. We resolve appellant's third issue against her.
        In issue four, appellant asks that we modify the judgment in the firearms possession case to show that the case was resolved in a trial before the court rather than on an open plea. In her fifth issue, appellant asks that we modify the judgment in the cocaine case to show she pleaded not true to the motion to revoke.
        In the firearm possession case, appellant entered a plea of not guilty and proceeded to a trial before the Court. The judgment incorrectly recites in the section entitled “terms of plea bargain,” that appellant entered an open plea. In the cocaine case, the record reflects appellant pleaded not true to the allegation, but the judgment incorrectly reflects appellant pleaded true. Accordingly, we sustain appellant's fourth and fifth issues, and modify the judgments to correctly reflect the proceedings. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.- Dallas 1991, pet. ref'd).
        In cause number 05-07-00517-CR, we modify the section of the trial court's judgment entitled “terms of plea bargain” to delete the word “open.”
        In cause number 05-07-00518-CR, we modify the section of the trial court's judgment entitled “plea to motion to revoke” by deleting the word “true” and entering the words “not true.”
        As modified, we affirm the trial court's judgments.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070517F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.