In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00119-CR
______________________________
CHRISTOPHER DEWAYNE COTTEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 34447-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Christopher Dewayne Cotten appeals from his conviction on his open plea of guilty to the third-degree felony offense of possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003). Cotten was sentenced by the trial court to seven years' imprisonment.
On appeal, Cotten raises one point of error, contending the sentence should be set aside and remanded for a new trial on punishment due to factual insufficiency of the evidence during the punishment phase of his trial, citing as authority the case of Jackson v. Virginia, 443 U.S. 307 (1979). Cotten states specifically in his appellate brief that he "does not rely on a 'proportionality' approach under the Eighth Amendment."
A review of the evidence for factual sufficiency is inappropriate with respect to the assessment of punishment. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.--Eastland 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.--Beaumont 1998, no pet.); Flores v. State, 936 S.W.2d 478, 479 (Tex. App.--Eastland 1996, pet. ref'd). Therefore, we decline to conduct a factual sufficiency review of the evidence on punishment. See Smith v. State, Nos. 14-06-00829-CR, 14-06-00830-CR, 14-06-00831-CR, 14-06-00832-CR, 2007 Tex. App. LEXIS 9203 (Tex. App.--Houston [14th Dist.] Nov. 20, 2007, no pet. h.) (mem. op., not designated for publication).
Cotten also alleges that his right to Due Course of Law, Article I, Section 19, of the Texas Constitution, has been violated, but cites no authority or argument. Therefore, he has waived this complaint and we will not address it. Brumit v. State, 206 S.W.3d 639, 646 n.3 (Tex. Crim. App. 2006).
There being no other issues before us, we affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: December 18, 2007
Date Decided: December 31, 2007
Do Not Publish
ority="60" SemiHidden="false" UnhideWhenUsed="false" Name="Light Shading"/>
|
|
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00236-CR
______________________________
ODELL NEAL, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 26652
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
On February 25, 2010, Odell Neal, Jr., was driving a Ford Explorer[1] through Commerce, Hunt County, Texas, and was stopped for a traffic violation. A search of the vehicle revealed a gun beneath a large pile of clothes in the rear area of the Explorer. As Neal was a previously convicted felon, he was charged with unlawful possession of a firearm by a felon. A jury found Neal was guilty and assessed punishment at eight years imprisonment. Neal contends that the evidence supporting his conviction is legally insufficient. We affirm the judgment of the trial court.
I. Factual History
Officer Alejandro Suarez saw Neal make an improper right turn, and initiated a traffic stop. Neal parked the vehicle in a private parking lot. Suarez recognized Neal[2] and had prior knowledge that his drivers license was suspended. When asked, Neal admitted that his license was suspended, and Suarez placed Neal under arrest for driving with a suspended license. At that time, Lieutenant Terry Miller arrived on the scene and got out of his patrol car to back up Suarez.
Because the vehicle was in a private parking lot, Suarez decided to impound it. Prior to having the vehicle towed away, Suarez and Miller inventoried the vehicle, to itemize everything thats in the vehicle, look through the vehicle and make sure that we check everything thats in there so there is documentation keeping track of what was in the vehicle at the time it was impounded. During this inventory search, the officers found an unloaded .357 revolver[3] in a mountain of clothes in the rear compartment of the Explorer. Also found in the vehicles rear compartment was a video game console, two guitars, some weight sets, some pool sticks. Neal claimed that the video game console and the two guitars were his. Neal testified that he had never seen the gun before that day and had no idea it was in the vehicle. Suarez testified that Neal told them that the revolver belonged to [o]ne of his homies and also that he thought he could have the gun while he was traveling.
Lakenda Jones, Neals girlfriend, testified that the Explorer belonged to Neals mother, Betty Neal. Jones and Neal lived and worked together. According to Jones, she and Betty agreed that Jones would take over the payments on the Explorer, but that she could not let Neal drive it because he did not have a drivers license. According to Jones, the clothes and stuff inside the vehicle belonged to her, her children, and Neal, and it was still in the vehicle because the couple had recently moved. Jones testified that she was familiar with the gun because one of her family members gave it to her. She said that she put the gun in the vehicle instead of their apartment to keep the gun away from Neal because he was not allowed to be around it. She put it under the clothes in the back of the vehicle because she washes the clothes and he does not, and she knew he wasnt going to go back there to mess with any of the clothes because he doesnt wash. Jones testified that this was her fault because Neal did not know the gun was in the car, and he wasnt aware of it.
II. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the jurys verdict to determine whether any rational jury could have found the essential elements of the charged offense beyond a reasonable doubt. Brooks, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.Texarkana 2010, pet. refd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
III. Evidence Linking Neal to the Gun
In Neals sole point of error, he argues that there is legally insufficient evidence that he unlawfully possessed a firearm. We disagree.
The sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). To prove unlawful possession of a firearm by a felon, the State was required to prove that Neal (1) possessed a firearm (2) after conviction and before the fifth anniversary of the persons release from confinement following conviction of the felony or the persons release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.[4] Tex. Penal Code Ann. § 46.04(a)(1) (West 2011). [T]o support a conviction for possession of a firearm, the State must show (1) that the accused exercised actual care, control, or custody of the firearm, (2) that he was conscious of his connection with it, and (3) that he possessed the firearm knowingly or intentionally. Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.Texarkana 2001, pet. refd).
When the firearm is not found on the accuseds person or in his or her exclusive possession, additional facts must link the accused to the contraband. Id. at 53; Jones v. State, 963 S.W.2d 826, 830 (Tex. App.Texarkana 1998, pet. refd). The State can meet its burden with circumstantial evidence, but it must establish that the defendants connection with the firearm was more than fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). This rule protects the innocent bystandersuch as a relative, friend, or even stranger to the actual possessorfrom conviction merely because of his or her fortuitous proximity to a firearm belonging to someone else. See Evans v. State, 202 S.W.3d 158, 16162 (Tex. Crim. App. 2006); Smith v. State, 176 S.W.3d 907, 916 (Tex. App.Dallas 2005, pet. refd). Some of the factors courts have used as links between the defendant and the contraband include: (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. Smith v. State, 118 S.W.3d 838, 842 (Tex. App.Texarkana 2003, no pet.). The number of links present is not as important as the degree to which they tend to link the defendant to the firearm. Washington v. State, 215 S.W.3d 551, 555 (Tex. App.Texarkana 2007, no pet.); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.Dallas 2003, no pet.).
In this case, several facts link Neal to the .357 revolver found in the rear area of the Explorer. Neal was the driver, and sole occupant, of the vehicle. A Crown Royal bag was found on the center console, near the drivers seat. The bag contained six .38 bullets, which Suarez testified could be fired from a .357 revolver. Several pieces of Neals personal property, including a video game console and two guitars, were also found in the rear area of the vehicle. After Neal was placed in custody and the gun was found, Suarez testified that Neal said, Hey, I thought you could travel with a gun, from which it could be logically inferred that he knew the gun was in the car, but thought it was not illegal to possess the firearm under those circumstances. When taken as a whole, and viewed in the light most favorable to the verdict, these factors are sufficient to allow a reasonable jury to infer that Neal knowingly possessed, and had control of, the gun. Accordingly, we overrule Neals point of error.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: June 9, 2011
Date Decided: June 15, 2011
Do Not Publish
[1]Neal was the only person in the vehicle.
[2]Suarez had a photograph of Neal because he was a suspect in the theft of a gun that had occurred the previous night. Suarez had never encountered Neal prior to the traffic stop.
[3]The gun found in the Explorer was not the gun that had been stolen the night before. Nothing in the record indicates that Neal was ever charged with the theft.
[4]In his testimony at trial, Neal admitted to being a convicted felon, and the indictment properly alleged Neal possessed a firearm before the fifth anniversary of [Neals] release from confinement. The offense occurred within five years of Neals prior felony conviction, March 31, 2008. Therefore, it is clear that the offense occurred within the relevant statutory time period, and Neal does not assert otherwise or raise this as an issue.