Stephen Dale Skillern v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-06-00314-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STEPHEN SKILLERN, APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Stephen Skillern appeals his conviction for possession of a firearm by a felon. In two issues, he argues that the evidence is legally and factually insufficient to sustain his conviction. We affirm.

Background

Appellant was the passenger in the rear seat of a four door pickup truck. Michael Hartsfield was driving and John Gordon was a passenger in the front seat. The three men were going to a residence in Angelina County. As he drove down a hill toward the home, Hartsfield observed several cars belonging to sheriff s deputies either in his way or at the home. Because he was intoxicated and had a glass methamphetamine smoking pipe in his pocket, Hartsfield decided not to go down the hill. Hartsfield also had a shotgun beside his seat, but this did not enter into his decision, because he did not consider his possession of the gun to be illegal. Hartsfield put the truck in reverse and attempted to leave the area. As he did so, Angelina County Sheriff Kent Henson and his chief deputy came up behind him in another vehicle. They viewed his behavior as suspicious, and Sheriff Henson maneuvered his vehicle to keep Hartsfield from driving away.

Hartsfield initially tried to drive around the sheriff s vehicle but ultimately relented and stopped the truck. He threw his glass smoking pipe on the floorboard and told Gordon to smash it. He handed the shotgun to Appellant in the back seat. In the meantime, Sheriff Henson and his deputy drew their weapons and instructed the men to exit the vehicle. Hartsfield and Gordon got out. Appellant remained in the back of the vehicle for between sixty and ninety seconds. During that time, Sheriff Henson heard what he thought to be the sound of a shotgun being racked, that is the chamber being cycled, and he saw what he thought was the barrel of a gun in motion in the rear seat area of the truck. The deputy instructed Appellant to exit the vehicle and told Appellant that he would shoot him if he did not comply. After a delay, Appellant exited the vehicle. The back doors were locked, and Appellant crawled out over the front seats. He was arrested once he exited the truck.

Appellant was a convicted felon, and an Angelina County grand jury indicted him for the felony offense of possession of a firearm by a felon. Appellant pleaded not guilty, and a trial was held. At trial, Hartsfield testified that he had loaded the shotgun with a green cartridge in the chamber and three red cartridges in the magazine. Police officers testified that they found a shotgun on the back bench seat of the truck and the green, or first loaded, cartridge on the floorboard of the backseat. Appellant testified that Hartsfield handed him the shotgun and he immediately dropped it to the floor in the back of the truck. He testified that he did not rack the gun and offered no explanation for how the green cartridge came to be on the floor in the back of the truck. The jury found Appellant guilty. At a separate punishment hearing, Appellant admitted that he had twice before been convicted of felony offenses and was sentenced to imprisonment for twenty five years. This appeal followed.

Sufficiency of the Evidence

In two issues, Appellant argues that the evidence was insufficient to support his conviction. Specifically, Appellant argues that there was insufficient evidence that his possession of the firearm was voluntary.

Standards of Review

The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App. Tyler 2006, pet. ref d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129 30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether the evidence supporting the verdict is so obviously weak as to undermine our confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23, S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury s verdict.).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

As alleged in the amended indictment, the State was required to prove that Appellant had been convicted of a felony and possessed a firearm away from his home. See Tex. Penal Code Ann. 46.04(a)(2) (Vernon 2006).

Analysis

Appellant conceded at trial that he was away from his home, that he possessed the firearm, and that he was a convicted felon. The issue at trial, and on appeal, is whether his possession of the firearm was voluntary, and therefore illegal. Texas Penal Code section 6.01(b) provides that possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

Sheriff Henson testified that Appellant was in the back of the truck for ninety seconds and that he heard the shotgun being racked during the time that Appellant was the only person in the truck. The recovery of the chambered, and therefore first to be ejected, shotgun cartridge supports the sheriff s testimony. Possession of a firearm for sufficient time to rack the slide and eject a cartridge is longer than it would have taken for Appellant to terminate his control of the shotgun. The jury could have concluded that Appellant possessed the shotgun for that period of time. Therefore, the evidence is legally sufficient to show that Appellant possessed the shotgun voluntarily. We overrule Appellant s first issue.

With respect to factual sufficiency review, all of the available evidence supported the basic story that Gilbert handed the shotgun to Appellant after the traffic stop. Appellant s further testimony that he ended his control of the shotgun as quickly as he could, if believed, would be sufficient to vindicate his position. The law requires no more. See Tex. Penal Code Ann. 6.01(b) (Vernon 2006). But the jury was not required to believe Appellant. In fact, they did not believe him, concluding instead that he possessed the shotgun at least long enough to work the action and eject the green cartridge.

The evidence supporting that conclusion is not so weak that our confidence in the verdict is undermined. The sheriff testified that he heard the shotgun being racked and that Appellant was behaving suspiciously. And the physical evidence supports the verdict. The owner of the gun testified that it was loaded in a specific way and Appellant is the only person who could have ejected the green cartridge.

Nor is the countervailing evidence so strong that it outweighs the evidence of guilt. Appellant s testimony contradicts the verdict, as does the testimony of the men arrested with him who said that they did not hear the gun being cycled. But the jury was in the best position to observe the demeanor of the witnesses, and the jury has the duty to reconcile conflicts in the evidence. See, e.g., Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). In light of the sheriff s testimony and the physical evidence, we hold that the jury s resolution of the contested issues was reasonable. We overrule Appellant s second issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 29, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)