NUMBER 13-14-00193-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PHILLIP JOSEPH FARRELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 411th District Court
of Polk County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Justice Longoria
By two issues, appellant Philip Joseph Farrell challenges his conviction for
unlawful possession of a firearm by a felon, a third-degree felony. See TEX. PENAL CODE
ANN. § 46.04(a) (West, Westlaw through 2013 3d C.S.). The jury returned a verdict of
guilty and assessed punishment at imprisonment for life pursuant to the habitual offender
statute. See id. § 12.42(d) (West, Westlaw through 2013 3d C.S.). We affirm.
I. BACKGROUND1
On August 5, 2012, a burglary occurred in a house in the Magnolia Woods
Subdivision in Livingston, Texas. Detective Anthony Lowrie testified that neighbors
observed three people leaving the house carrying weapons and ammunition and who fled
once the neighbors saw them. Police arrested Katrina Barnes, one of the three suspects,
who admitted to the burglary. Barnes told Detective Chris Lima that Adam Horn, one of
the other two, was currently at the residence of Timothy Smith.2 Smith lived on the same
street as appellant, and Detective Lima first knocked on the door of appellant’s house,
thinking it was Smith’s. Appellant answered the door, told Detective Lima of his mistake,
and the detective left.
After arresting all three suspects, Barnes told Detective Lima that appellant was
keeping one of the stolen firearms at appellant’s house. Detectives Lima and Lowrie
returned to the house and knocked on the door. Detective Lima testified that appellant
answered the door and denied knowledge of the gun until Detective Lima told him that
“we already know that the gun is here, you know, we need to get it back from you. We
said, you know, you may not have stole [sic] it; but we know you have the gun here.”
Appellant admitted that he had the firearm in his house and told the two detectives that
he would get it for them. Detective Lima asked appellant if the detectives could
1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
2 The name of the third suspect was Richard Gagnon.
2
accompany him to get the gun for the detectives’ safety, and appellant responded: “Go
ahead. That would be fine.” Detective Lima testified that because of officer safety
concerns, they did not intend to let appellant retrieve the weapon if he had refused to let
them accompany him inside the house. Appellant handed the firearm to the detectives
and all three men returned to the front porch, followed by appellant’s wife. The detectives
began talking to appellant about obtaining further consent to search for narcotics they
believed appellant was selling. Both detectives testified that at the time, they did not know
appellant had previous felony convictions.
The State charged appellant with being a felon in possession of a firearm. See id.
§ 46.04(a). The indictment alleged that appellant had been convicted of the felony offense
of burglary of a building within five years of the date of his arrest. See id. § 30.02(a)
(West, Westlaw through 2013 3d C.S.). Jessica Slack, an investigator for the District
Attorney’s Office, testified for the State. The State admitted certified copies of a judgment,
information, and waiver of indictment in a criminal case from Harris County with cause
number 1237234 (“the previous judgment”). Slack testified that she obtained the previous
judgment from the National Crime Information Center. The Information recited that “Philip
Joseph Farrell” was a white male, date of birth “6/9/79.” The previous judgment itself
stated that on October 15, 2009, Farrell was convicted of the felony offense of burglary
of a building. Investigator Slack could not definitively testify that the defendant in that
case and appellant were the same person because the fingerprint at the bottom of the
judgment was smudged. On the State’s request, the trial court took judicial notice that
appellant had stated that his birthdate was “6-9-79” at a prior hearing. The trial court
admitted the judgment and information over appellant’s objections. The State also
3
introduced into evidence three trial reset forms that it stated bore appellant’s signature.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant argues that the State did not produce legally sufficient
evidence for the jury to link him to a prior felony conviction for purposes of showing that
he possessed the firearm within five years of his release from confinement following
conviction for a felony. See id. § 46.04(a)(1).
A. Standard of Review and Applicable Law
In a legal-sufficiency review we review the evidence in the light most favorable to
the jury’s verdict and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Montgomery v. State, 369
S.W.3d 188, 192 (Tex. Crim. App. 2012). It is the responsibility of the trier of fact, in this
case the jury, to resolve conflicts in the testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Gear v. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011). We may not usurp the jury’s role by substituting our own
judgment for that of the jury. Montgomery, 369 S.W.3d at 192. If the record supports
conflicting inferences, we must presume the jury resolved any conflicts in favor of their
verdict and defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim.
App. 2012).
We measure the sufficiency of the evidence by the elements of the offense as
defined by the hypothetically correct jury charge for the case. Yzaguirre v. State, 394
S.W.3d 526, 528 (Tex. Crim. App. 2013) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). The hypothetically correct charge is “one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State's burden
4
of proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009). The hypothetically correct charge in this case would
require the State to prove that appellant: (1) had previously been convicted of a felony
offense and (2) possessed the firearm within five years of his release from confinement
or from supervision following the conviction. See Powell v. State, 112 S.W.3d 642, 644
(Tex. App.—Houston [1st Dist.] 2003, pet. ref'd).
To establish the first element, the State must prove beyond a reasonable doubt:
(1) the existence of a prior conviction; and (2) the defendant is linked to that conviction.
Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The Flowers Court noted
that Texas law does not require that the State prove the existence of a prior conviction in
any specific manner: “[a]ny type of evidence, documentary or testimonial, might suffice.”
Id. at 922. The process of proving that a defendant is the same person as the defendant
in an alleged prior criminal conviction resembles the process of assembling the pieces of
a puzzle. Id. at 923. Each individual piece may have little meaning standing alone, but
when fitted together usually forms a picture that links the defendant to the person
convicted in the previous judgment. Id. It is the role of the trier of fact to “fit the pieces of
the jigsaw puzzle together and weigh the credibility of each piece.” Prihoda v. State, 352
S.W.3d 796, 807 (Tex. App.—San Antonio 2011, pet. ref'd).
Merely showing that the defendant and the person previously convicted share the
same name is not sufficient to satisfy the State’s burden to link the defendant to the prior
conviction. Benton v. State, 336 S.W.3d 355, 357 (Tex. App.—Texarkana 2011, pet.
ref'd). However, multiple pieces of identification information taken together, such as
5
name, gender, eye and hair color, height, and date of birth can also suffice to prove
identity. Williams v. State, 946 S.W.2d 886, 895 (Tex. App.—Waco 1997, no pet.).
B. Discussion
In this case, the State presented the following evidence. First, the previous
judgment refers to a white male named Philip Joseph Farrell with the birthdate “6-9-79.”
Appellant’s full name is “Philip Joseph Farrell,” and the name is not a common one. See
Benton, 336 S.W.3d at 359 (“Here, we are not confronted with a name commonly
encountered, a partial name, or initials.”). Second, at a bond hearing in this case,
appellant answered “Yes, sir” to the trial court’s question “were you born on 6-9 of 1979,”
which is the same birthdate on the previous judgment.3 See Forward v. State, 406 S.W.3d
601, 606–07 (Tex. App.—Eastland 2013, no pet.) (holding that a birth date identical to
the defendant’s on two prior judgments was evidence linking the defendant to them);
Benton, 336 S.W.3d at 359 (same). Third, the State introduced three sets of forms
bearing the signature “Philip Farrell” that the jury could compare with the signature on the
previous judgment. See TEX. CODE CRIM. PROC. ANN. art. 38.27 (West, Westlaw through
2013 3d C.S.) (“It is competent to give evidence of handwriting by comparison, made by
experts or by the jury”); Benton, 336 S.W.3d at 360 (holding the jury was free to compare
the signatures on the prior convictions with the defendant’s signature even if a
comparison “was not specifically requested”).4 Finally, the previous judgment was
Appellant’s reference to the fact that appellant might have thought of his birth date in the day-
3
month-year style is a determination on the weight of the evidence that was within the province of the jury.
See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
4 Appellant argues that comparison of “handwriting is not sufficient evidence to connect a defendant
to a prior conviction without expert testimony.” See Cain v. State, 468 S.W.2d 856, 859–60 (Tex. Crim.
App. 1971), overruled in part on other grounds, Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984)
(en banc). However, the Cain Court held that evidence of a defendant’s signatures without expert testimony
standing alone could not establish a connection between a defendant and a previous conviction. Id. at 895.
6
rendered in the City of Houston, in Harris County, Texas. We take judicial notice that
Houston is approximately seventy-three miles from where this case took place in
Livingston, Texas in Polk County.5 See Benton, 336 S.W.3d at 359 (taking judicial notice
that it was 115.95 miles from the place where the original convictions were rendered to
the location of the current case and treating that fact as linking the defendant to the
original convictions).
In sum, while it is possible that there is another white male named Philip Joseph
Farrell born on June 9, 1979, and who lives in the seventy-three mile geographic area
between Houston and Livingston, we believe that the evidence that this is the same
defendant who was convicted for burglary of a building is sufficient. We accordingly
conclude that a rational trier of fact could have found beyond a reasonable doubt that
sufficient evidence links appellant to the previous judgment of conviction for burglary of a
building. See Montgomery, 369 S.W.3d at 192; see also Atwood v. State, No. 13-11-
00642-CR, 2013 WL 1385250, at *2 (Tex. App.—Corpus Christi Apr. 4, 2013, no pet.)
(mem. op., not designated for publication) (holding that legally sufficient evidence
connected the appellant to two prior DWI convictions that showed the appellant had the
same date of birth, lived at the same address, and “had the same personal descriptors”
as the person twice convicted of operating a motor vehicle while intoxicated). We overrule
Cain did not hold that comparison of signatures could not form one of the pieces of the “jigsaw puzzle.”
See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
5 Courts may take judicial notice of a fact that is “not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” TEX. R. EVID. 201;
see Landry v. State, 60 S.W.3d 263, 266 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). One such fact
is the distance between two geographical locations. Benton v. State, 336 S.W.3d 355, 359 n.8 (Tex. App.—
Texarkana 2011, pet. ref'd); see Lovelady v. State, 65 S.W.3d 810, 813 (Tex. App.—Beaumont 2002, no
pet.); Lozada-Mendoza v. State, 951 S.W.2d 39, 44 (Tex. App.—Corpus Christi 1997, no pet.).
7
appellant’s first issue.
III. MOTION TO SUPPRESS
By his second issue, appellant challenges the trial court’s ruling denying his motion
to suppress on the grounds that he did not give voluntary consent to search.
A. Standard of Review and Applicable Law
We review a trial court's denial of a motion to suppress under a bifurcated standard
of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). In this review
we afford almost total deference to the trial court’s determinations of historical facts if they
are supported by the record, but review de novo the trial court’s application of the law of
search and seizure to the facts of the case. State v. Weaver, 349 S.W.3d 521, 525 (Tex.
Crim. App. 2011). We examine all of the evidence in the light most favorable to the trial
judge’s ruling and afford the prevailing party the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn from it. Id. We will uphold the trial
judge’s ruling if it is reasonably supported in the record and is correct on any applicable
theory of law. Turrubiate, 399 S.W.3d at 150.
“Under the Fourth and Fourteenth Amendments, a search conducted without a
warrant based on probable cause is per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.” Meekins v. State, 340 S.W.3d
454, 458 (Tex. Crim. App. 2011) (quotation marks omitted). Voluntary consent is one
such exception. Weaver, 349 S.W.3d at 525–26. Under Texas law, the State has the
burden to prove voluntary consent by clear and convincing evidence. Id. at 526. Whether
consent to search was voluntary is a question of fact that we determine from the totality
of the circumstances. Id. Persons may communicate consent to search by words,
8
actions, or circumstantial evidence showing implied consent. Meekins, 340 S.W.3d at
458. The ultimate question we must answer “is whether the person's will ha[s] been
overborne and his capacity for self-determination critically impaired, such that his consent
to search must have been involuntary.” Id. at 459 (quotation marks omitted).
B. Discussion
Appellant argues the State did not show by clear and convincing evidence that
appellant consented to the search. Appellant points to Detective Lima’s testimony during
the trial on the merits where he testified that he told appellant: “‘[l]ook, for officer safety,
we want to follow you in there to get the firearm,’ which he agreed to.” Appellant views
this as contradicting Detective Lima’s pre-trial testimony at the suppression hearing
because “[l]ook, . . . we want to” is the language of command and did not give appellant
a choice. However, it is not for this Court to consider Detective Lima’s statements during
the trial on the merits. The general rule is that our review of a pre-trial motion to suppress
is “limited to that evidence presented at the pretrial hearing—the evidence that was before
the court at the time of its decision.” Black v. State, 362 S.W.3d 626, 635 (Tex. Crim.
App. 2012). There is an exception for circumstances where the parties “consensually
broach the suppression issue again before the fact-finder at trial.” Id. Appellant argues
that this exception applies here, but we find no indication in the record that the parties
revisited any argument or assertion that appellant made during the pre-trial hearing.
Detective Lima’s statements during the trial on the merits were part of Detective Lima’s
general description of the events leading up to the recovery of the firearm. See id. We
overrule appellant’s second issue.6
6Because we may not revisit the question of whether appellant consented to the search, we do not
reach appellant’s arguments regarding why the doctrine of exigent circumstances did not permit the police
9
IV. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of August, 2014.
to accompany appellant into the house to retrieve the firearm. See TEX. R. APP. P. 47.1.
10