LEONARD MILES III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01239-CR
No. 05-07-01240-CR
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LEONARD MILES III, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-49336-KJQ & F05-73075-RJQ
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OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Francis
        Leonard Miles III appeals his convictions for unlawful possession of a firearm by a felon and possession of 200 grams or more but less than 400 grams of codeine. The jury found appellant guilty of the charged offenses and made a finding that appellant used or exhibited a deadly weapon during the commission of the possession of codeine offense. In the firearm case, the jury assessed punishment at ten years in prison and a $2500 fine; in the drug case, the jury assessed punishment, enhanced by two prior felony convictions, at twenty-one years in prison and a $500 fine. In four points of error, appellant claims the evidence is legally insufficient to support his possession of codeine conviction, the evidence is factually insufficient to support his conviction for possession of a handgun, and the trial court erred in instructing the jury. We affirm.
        In his first point of error, appellant contends the evidence is legally insufficient to support his conviction for possession of codeine. Under this issue, appellant concedes the State proved he possessed codeine syrup weighing 304 grams and that the codeine concentration was 158 milligrams per 100 milliliters. Nevertheless, he argues he was indicted for possession of a Penalty Group 1 substance and no evidence shows the codeine concentration was more than 1.8 grams per 100 milliliters.
        Appellant was indicted for unlawfully and knowingly possessing with intent to deliver codeine “in an amount by aggregate weight, including any adulterants or dilutants, of 200 grams or more but less than 400 grams.” No penalty group was alleged in the indictment. Appellant claims when “an indictment does not specifically allege codeine concentration, the applicable penalty group is Penalty Group One,” citing Reed v. State, 158 S.W.3d 44, 49-50 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) and Dudley v. State, 58 S.W.3d 296, 299-300 (Tex. App.-Beaumont 2001, no pet.). Contrary to appellant's argument. these cases provide only that when the State alleges a specific penalty group in the indictment, the State is required to prove beyond a reasonable doubt the penalty group alleged. Reed, 158 S.W.3d at 50 (appellate court concluding, because State alleged codeine concentration listed in Penalty Group 4 as element of crime, State “was required to prove beyond a reasonable doubt that the seized codeine was codeine described in Penalty Group 4.”); Dudley, 58 S.W.3d at 299 (appellate court concluding that State, “having pleaded possession of codeine 'listed in Penalty Group 4 of the Texas Controlled Substances Act,'” was required to prove appellant possessed codeine, “a 200 milligram to 100 milliliter (or 100 gram) concentration ratio when mixed with the required “nonnarcotic active medicinal ingredients.”). Appellant's cases are inapplicable to the complaint he raises here.         Furthermore, our research has not revealed authority standing for the proposition that, when the State fails to allege a penalty group in the indictment, the State must then prove Penalty Group 1. Because the indictment in this case did not allege a penalty group, the State was not required to prove appellant possessed codeine described in Penalty Group 1. Appellant concedes the State proved the codeine concentration was 158 milligrams per 100 milliliters, an amount set out in either Penalty Group 3 or 4. See Tex. Health & Safety Code Ann. §§ 481.104(4), 481.105(1) (Vernon 2003). Moreover, he concedes the State proved he possessed 304 grams of codeine. See id. §§ 481.117(d), 481.118(d) (penalty group 3 offense under subsection (a) is second-degree felony if amount of controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams; penalty group 4 offense under subsection (a) is second- degree felony if amount of controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams). We therefore conclude the evidence is legally sufficient to support appellant's conviction for possession of 200 grams or more but less than 400 grams of codeine.
        To the extent appellant is attempting to argue indictment error, he has waived any error by failing to object at trial. See Tex. Code of Criminal Proc. art. 1.14(b) (Vernon 2005); Rodriguez v. State, 799 S.W.2d 301, 302 (Tex. Crim. App. 1990) (defect of substance in indictment waived by appellant's failure to object pre-trial) (citing Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990)); Lockett v. State, 874 S.W.2d 810, 816 (Tex. App.-Dallas 1994, pet. ref'd) (accused must raise indictment's substantive defects before trial or forfeit right to raise objection on appeal). We overrule appellant's first point of error.
        In his second point of error, appellant claims the evidence is factually insufficient to support his conviction for knowing possession of a gun by a felon. Under this point, appellant contends Officer Richardson's “bare assertion” the handgun was on the couch and appellant was sitting on the gun is so weak we must reverse his conviction. We disagree.
        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). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford “due deference” to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied 128 S. Ct. 87 (2007). Although the reviewing court is permitted “to substitute its judgment for the jury's” when considering credibility and weight determinations, it may do so only “to a very limited degree.” Id. (citing Watson, 204 S.W.3d at 417).
        A person who has been convicted of a felony commits an offense if he possesses a firearm after conviction and before the fifth anniversary of his release from confinement following conviction of the felony. Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2008). The State must show (1) the accused exercised actual care, control, or custody of the firearm, (2) he was conscious of his connection with it, and (3) he possessed the firearm knowingly or intentionally. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). When the accused did not have exclusive possession of the firearm, the State must show independent facts and circumstances linking the accused to the contraband. Young v. State, 752 S.W.2d 137, 140 (Tex. App.-Dallas 1988, pet. ref'd) (citing Christian v. State, 686 S.W.2d 930, 932 (Tex. Crim. App. 1985)); Corpus v. State, 30 S.W.3d 35, 38 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Factors that may establish links include whether (1) the firearm was in a place owned by the accused; (2) the firearm was conveniently accessible to the accused; (3) the firearm was in plain view; (4) the firearm was found in an enclosed space; (5) the conduct of the accused indicated a consciousness of guilt; (6) the accused had a special relationship to the firearm; and (7) affirmative statements connect the accused to the firearm. Davis v. State, 93 S.W.3d 664, 668 (Tex. App.-Texarkana 2002, pet. ref'd); Corpus, 30 S.W.3d at 38. See Young, 752 S.W.2d at 140.
        Although appellant claims the evidence is so weak the verdict seems clearly wrong or manifestly unjust, we cannot agree. At trial, Officer Richardson testified that, on February 10, 2005, he was a detective with the Dallas Police Department narcotics division. On that day, he and several other officers executed a search warrant for a duplex at 2713 Linway Street. The police department had received complaints about drug activity at the residence and had information “a number of firearms” would be at the residence. In light of this, the team made a dynamic entry when executing the warrant. Officer Richardson was in the first position; when he entered the house, he saw one individual, Reginal Harvey, holding a pump shotgun and two people, one of whom he identified as appellant, sitting on a couch. When Officer Richardson raised his submachine gun, Harvey dropped the shotgun and fled down the hallway. While another officer chased Harvey, Officer Richardson approached appellant and pushed him down on the couch to secure him physically. As he did so, Officer Richardson saw “a handgun directly underneath where he was sitting, on top of the couch cushion, where his body was immediately in contact with the handgun.” Officer Richardson also testified that when he secured appellant, he yelled to another team that he had a gun and one of them picked the gun up and secured it. The gun was loaded and had to be moved for officer safety. The officers searched appellant and found $595 in mostly small bills. Officer Richardson stated small bills are “typically the common denominations that we see in most drug houses that are for street level narcotics.” On cross-examination, the officer clarified the gun was directly under appellant's buttocks.
        Officer Richardson described the house. No beds were in the bedrooms nor tables in the kitchen. The living room had minimal furniture: a television, a couple of seats, and a couple of sofas or love seats. The house did not have running water. The kitchen had several pimento bottles full of codeine syrup, a couple of digital scales, plastic packaging materials normally “used for marijuana, cocaine, things of that nature.” Several empty prescription bottles for codeine syrup were found in the trash can; the names on the prescriptions did not match anyone at the house. Officer Richardson testified he referred to the house as a “trap”-a place set up solely for the purpose of selling drugs.
        In contrast, appellant testified he was drinking promethazine codeine syrup and watching television with two friends when the police entered. According to appellant, he “laid on the floor” when they entered; he denied that Officer Richardson pushed him down on the sofa. Appellant did not know there was a gun in the house until Harvey pulled the shotgun out from behind the couch and he “certainly wasn't sitting on a gun.” Appellant did not deny he possessed codeine but testified he and his friends intended to drink it all.
        Although appellant claims he did not know there were guns in the house and denied sitting on a gun, Officer Richardson testified Harvey was holding a pump shotgun and appellant was sitting on a gun when the officer entered the house. Officer Richardson secured appellant and saw the gun directly underneath where appellant had been seated. Although appellant denied sitting on a gun or knowing guns were in the house, the jury, as fact finder, was entitled to believe Officer Richardson's testimony and discredit appellant's testimony. The jury's decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. After reviewing all the evidence in this case, we cannot conclude the great weight and preponderance of evidence contradicts the verdict. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error.
        In his third point of error, appellant contends the trial court erroneously modified the jury charge to instruct the jury to find appellant guilty and this modification constituted a comment on the weight of the evidence. We disagree.
        Our first duty in analyzing a claim of jury charge error is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim App. 2005); Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh'g). If we find error, we analyze that error for harm. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). When, as in this case, the defendant fails to object or states he has no objection to the charge, we will not reverse for jury charge error unless the record shows “egregious harm” to the defendant. Id. at 732; Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008) (affirming that burdens of proof or persuasion have no place in harm analysis conducted under Almanza standard). Thus, we review claims of jury charge error by considering two questions: whether error existed in the charge, and whether sufficient harm resulted from the error to compel reversal. Ngo, 175 S.W.3d at 74; Almanza, 686 S.W.2d at 174. In determining whether an instruction is a comment on the weight of the evidence, we consider the court's charge as a whole. See Russell v. State, 749 S.W.2d 77, 79 (Tex. Crim. App. 1988).
        When reading the charge to the jury in open court, the trial court stated there were two jury charges, one for each offense alleged, and said the possession of a controlled substance case had a special issue on the last page. The trial court then told the jury, “You will use [the special issue] if you find the defendant guilty; and if you do find him guilty, then you'll have to answer yes or no as to whether or not he used . . . or exhibited a firearm during commission of the offense.” The complained-of question stated “Do you find beyond a reasonable doubt that the defendant . . . used a deadly weapon, to wit: a firearm, during commission of any offense submitted to you in this charge.” Immediately preceding this question were two definitions:
 
“Used” means any employment of a deadly weapon, including its simple possession, if such possession facilitates the associated felony offense, if any.
 
 
 
“Exhibited a deadly weapon” means that the weapon was consciously shown or displayed during the commission of the offense, if any.
 
        Because the trial court orally instructed the jurors they would only consider the special issue if they found appellant guilty of the possession of a controlled substance offense and the preceding definitions emphasized this point, we cannot conclude the question constituted a comment on the weight of the evidence. We overrule appellant's third point.
        In his fourth point, appellant complains the trial court erred in “instructing” the jury to find appellant possessed a handgun in the possession of a firearm by a felon case. Apparently, appellant's complaint is directed to the trial court's question whether the jury found from the evidence beyond a reasonable doubt that appellant committed the offense of possession of a firearm by a felon. Appellant makes no argument with respect to the jury charge in the possession of a firearm case. He does not explain how the jury charge was erroneous or argue the jury was confused or misled; nor does he argue he was egregiously harmed. Rather, he only states this Court should sustain his point of error and reverse his conviction for possession of a firearm by a felon. Because appellant did not brief this point, we decline to address it. See Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) (“Appellant leaves us to find error and argue his case for him; this is inadequate briefing, and as such, it presents nothing for our review.”). We overrule appellant's fourth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
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071239F.U05