Morris Angelle v. The State of Texas--Appeal from 128th District Court of Orange County

MEMORANDUM OPINION
No. 04-03-00524-CR
Morris ANGELLE,
Appellant
v.
The STATE of Texas,
Appellee
From the 128th Judicial District Court, Orange County, Texas
Trial Court No. A020413-R
Honorable Patrick A. Clark, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 29, 2004

AFFIRMED

Following a jury trial, Morris Angelle was convicted of unlawful possession of a firearm by a felon. In one issue on appeal, he argues that the evidence was legally and factually insufficient to support his conviction. We overrule his sole issue and affirm the judgment of the trial court.

Factual and Procedural Background

In July of 1985, Angelle was convicted of attempted capital murder. In 1990, he was released on mandatory supervision. On the afternoon of April 28, 2002, he was at work when his wife, Lubertha, and their son, Demarcus, drove by and observed him talking to a woman named Eva Phillips. Because Lubertha was upset that Eva was talking to Angelle, Lubertha, Eva, and Angelle got into an argument. Eva then left, but Lubertha followed her. Angelle then followed Lubertha. They all arrived at a location referred to as "the Navy Addition." At "the Navy Addition," Lubertha called the police. According to Lubertha's trial testimony, she did so because Demarcus and Angelle were arguing. Demarcus then left. Lubertha got into the car with Angelle, and they headed to their house. Although Lubertha testified at trial that she went with Angelle willingly, on the day of the incident, she told the police that Angelle took her keys from her and forced her into the car.

Angelle and Lubertha then drove by a car wash where they saw Eva. They stopped, and everyone began arguing again. Demarcus then came to the car wash. Lubertha again called the police. Lubertha and Angelle then went to their house on Ruby Lane. They continued to argue. Angelle got a gun from the house, and put it in his waistband. Then, Angelle and Lubertha got back in the car. According to Lubertha's testimony, Angelle got the gun to keep Demarcus from getting it. Lubertha also testified that she does not remember if she called the police from Ruby Lane. According to the police, however, she did call from Ruby Lane. When the police drove by, Lubertha motioned for them to stop. The officers then arrested Angelle for possession of a firearm.

Demarcus testified to the following at trial: he became very upset when he saw Angelle talking to Eva. At "the Navy Addition," he told Angelle that he had a gun and intended to shoot Angelle. He then left and went to a friend's house where he got a gun. He then went riding around in a car looking for Angelle. Demarcus found Angelle at the car wash where he threatened Angelle again. He then went to the house. Demarcus testified that while Angelle was at the house, he was also there looking for a gun. He could not find one. Although Demarcus had spoken with the prosecutors before trial, he never told them that he had threatened Angelle on the day of the incident.

According to Angelle's trial testimony, he was working when Eva came by and they began to talk. Lubertha and Demarcus then drove by, and because he had been talking to Eva, Lubertha became angry. Eva left, and Lubertha followed her. Angelle then followed Lubertha. When he caught up with Lubertha, they argued. Demarcus got out of the car and threatened Angelle that he was going to get a gun and harm Angelle. Demarcus then left. Angelle told Lubertha to get in the car. They started to drive home when they passed the car wash and saw Eva there. They stopped and began arguing again. When Demarcus arrived, they left to go home. At home, Angelle got the gun and put it in his waist band. He intended to take it to his mother's house. The police officers then stopped him and arrested him. Angelle admitted that at the time he possessed the weapon, there was no imminent threat from his son. He did, however, believe that he needed to immediately remove the gun from his house. Angelle also admitted that removing the gun from his residence was not the only solution to keeping the gun away from Demarcus. He admitted that he could have called 911 for help, he could have driven to the police station, he could have removed the bullets from the house, or he could have placed the gun in the trunk of his car.

On the day of the incident, Orange County Police Officer Robert Estrello was dispatched to a particular location for a disturbance between a husband and wife. Officer Clint Weir was also dispatched to the scene. When they arrived, no one was there. A few minutes later, they got another call saying the disturbance was at a car wash. When they arrived at the car wash, no one was there either. They then received a third call about a disturbance on Ruby Lane. The call was from the wife on her cell phone; the wife stated that her husband had pushed her into a vehicle and was going to get a gun. As Estrello approached the address, he saw a vehicle backing out of the driveway. The passenger, who was later identified as Lubertha, looked frightened and waved him over. Officer Estrello radioed Officer Weir to stop the vehicle. After Angelle stopped, the officers removed a small loaded revolver from Angelle's waist band. Angelle appeared very upset. Lubertha looked very afraid and refused to give a written statement. She never mentioned anything about Demarcus. She told Estrello that Angelle had taken away her keys and pushed her into the car. The arrest was videotaped from Officer Estrello's and Weir's patrol units. The videos were played for the jury.

While the officers were placing Angelle under arrest, Captain Robert Enmon arrived at the scene and spoke to Lubertha. According to Enmon, Lubertha showed classic symptoms displayed by people involved in family disturbances. She was upset and did not want to give much information. She did not want Angelle to go to jail, but once he was arrested, she became concerned about when he would be getting out of jail. She expressed to him that she wanted to be warned before Angelle got out of jail.

At trial, Angelle admitted he possessed the firearm, but raised the defense of necessity. The jury, however, returned a guilty verdict.

Standard of Review

When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence nor do we assess the credibility of witnesses on each. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

In conducting a factual-sufficiency review, rather than viewing the evidence in the light most favorable to the prosecution, our review is a neutral one of the evidence. Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). There is only one question to be answered in a factual-sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Id. at 484. There are two ways in which the evidence may be factually insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485.

Discussion

Section 46.04 of the Texas Penal Code provides that it is unlawful for a convicted felon to possess a firearm "after conviction and before the fifth anniversary of [his] release from confinement" and that it is unlawful at any time for a convicted felon to posses a firearm "at any location other than the premises at which [he] lives." Tex. Pen. Code Ann. 46.04(a) (Vernon Supp. 2004). The evidence shows that Angelle was a convicted felon and that he was carrying a loaded revolver in his waistband while driving his car. Thus, viewing the evidence in the light most favorable to the verdict, the evidence is legally sufficient for the jury to find Angelle guilty of unlawful possession of a firearm by a felon.

From a factual sufficiency standpoint and viewing the evidence in a neutral light, we must consider Angelle's necessity defense. Section 9.22 of the Texas Penal Code provides that conduct is justified if

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Tex. Pen. Code Ann. 9.22 (Vernon 2003). The evidence shows that Angelle and Lubertha were involved in a domestic dispute. On the day of the incident, Lubertha called the police three times from three different locations to get help. Also on the day of the incident, Lubertha told police that her husband took her keys from her and pushed her into the car. At trial, Lubertha stated Angelle did take her keys away but that he did not push her into the car. When the police officers approached Lubertha and Angelle in their car, Lubertha waved them over and appeared to be frightened. According to the officers, Lubertha showed classic symptoms of a victim of a domestic dispute. She did not want Angelle to go to jail, but she wanted to be warned when he was released. Lubertha, Demarcus and Angelle, however, testified that Demarcus threatened Angelle, stating he was going to get a gun and kill Angelle. There was also evidence at trial that Angelle removed the gun from his residence because he was concerned for his safety and he wanted to make sure Demarcus did not get the gun. The police officers, however, were never made aware of Demarcus's threat on the day of the incident. The first time Demarcus's threat came to light was at trial.

Angelle himself admitted there was no imminent threat when he removed the gun from his residence. He admitted to several alternative courses of action he could taken to protect himself, such as calling the police, removing the bullets from the gun and placing the gun in the trunk of the car.

Considering all of the evidence in a neutral light, a jury could be rationally justified in finding guilt beyond a reasonable doubt. Accordingly, we overrule Angelle's issue on appeal and affirm the trial court's judgment.

Karen Angelini, Justice

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