Robert Delane Moore v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-06-00313-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT DELANE MOORE, APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Robert Moore appeals from his conviction for possession of a firearm by a felon. In one issue he argues that the evidence was factually insufficient to support the verdict. We affirm.

Background

A property owner called the authorities to help resolve some difficulties he had been having with people refusing to leave a rental property. Several Angelina County sheriff s deputies responded. They found a number of people milling around the front of the residence. In an effort to maintain the status quo while investigating the complaint, one of the deputies approached Appellant and asked him for identification. Appellant was standing near the front wheel on the driver s side of his pickup truck. He said that his identification was in the cab of the truck and started to move in that direction. The deputies asked him to stop, and one deputy looked into the cab. He observed a pistol grip shotgun on the transmission hump between the driver s and passenger s seats. Appellant was detained, and the deputies found his identification on his person.

Appellant had been previously convicted of several felony offenses. An Angelina County grand jury indicted him for the felony offense of possession of a firearm by a felon. A trial was held, and Appellant pleaded not guilty. The jury found him guilty. Appellant then admitted, as alleged in the indictment, that he had twice before been convicted of a felony offense, and the trial court assessed punishment at imprisonment for twenty five years. This appeal followed.

Sufficiency of the Evidence

Appellant argues that the evidence is factually insufficient to support the verdict.

Standard of Review and Applicable Law

  We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414 15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia1 standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict. See Clewis, 922 S.W.2d at 133. But our evaluation should not substantially intrude upon the jury s role as the judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.

As charged in the amended indictment, the State was required to prove that Appellant possessed a firearm before the fifth anniversary of his release from confinement, parole, or community supervision for a felony offense. Tex. Penal Code Ann. 46.04(a)(1) (Vernon 2006). A person possesses an item if he exercises actual care, custody, control, or management of the item. Tex. Penal Code Ann. 1.07(a)(39) (Vernon 2006). To prove possession of a firearm, the State must show (1) that the accused exercised actual care, custody, or control of the firearm, (2) that the accused was conscious of his connection to it, and (3) that he possessed the firearm knowingly or intentionally. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (possession of illegal drugs).

Analysis

  Appellant argues only that he did not possess the shotgun, not that he was not a felon or that he could legally possess the firearm. When an accused is not in exclusive possession and control of the contraband, it cannot be concluded that he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Brown, 911 S.W.2d at 747 48. The affirmative links principle simply restates the common sense notion that a person may share control of a place but does not necessarily possess every contraband item found in the place. See Poindexter, 153 S.W.3d at 406. When proof of possession is based on something other than the item being on the accused s person, the evidence must establish, to the requisite level of confidence, that the accused s connection with the item was more than just fortuitous. Id. (quoting Brown, 911 S.W.2d at 747).

Factors that may establish such affirmative links include whether (1) the contraband was in a car driven by the accused, (2) the contraband was in a place owned by the accused, (3) the contraband was conveniently accessible to the accused, (4) the contraband was in plain view, (5) the contraband was found in an enclosed space, (6) the contraband was found on the same side of the car as the accused, (7) the conduct of the accused indicated a consciousness of guilt, (8) the accused had a special relationship to the contraband, (9) occupants of the automobile gave conflicting statements about relevant matters, and (10) affirmative statements connect the accused to the contraband. See Nguyen v. State, 54 S.W.3d 49, 53 (Tex. App. Texarkana 2001, pet. ref'd).

The shotgun was not found on Appellant s person. Nevertheless, there was circumstantial evidence that supports the jury s verdict. The gun was in a truck owned by Appellant, it was convenient to him, in plain view, within his reach when he was in the car, and there was some consciousness of guilt on his part his obfuscation about where his identification was. This is not a case of a small pistol or bundle of narcotics secreted in a place unknown to the driver of an automobile. Appellant was merely feet away from the gun, which was in plain view even from outside of the vehicle. Absent some other facts, the jury reasonably concluded that Appellant had care, custody, or control of the shotgun in his truck. The great weight and preponderance of the evidence does not contradict the jury s verdict, and we are not convinced that the verdict is clearly wrong or manifestly unjust. Therefore, we overrule Appellant s sole issue.

Disposition

We affirm the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered June 29, 2007.

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

(DO NOT PUBLISH)

1Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)