IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 24, 2006
______________________________DAVID J. SCHULTZ, APPELLANT
V.
CYNTHIA S. BARNES, APPELLEE _________________________________
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 40,811-A; HONORABLE HAL MINER, JUDGE _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONAppellee Cynthia S. Barnes seeks dismissal of this appeal brought by David Schultz challenging a take-nothing directed verdict in favor of Barnes on Schultz's claims arising from a construction contract. After Schultz perfected appeal, Barnes filed a bankruptcy petition listing Schultz as an unsecured creditor. No notice of that proceeding was filed in this court so that the appeal could be abated as required by federal law. See 11 U.S.C. § 362; Tex. R. App. P. 8.1, 8.2. According to certified copies of documents from the bankruptcy court, Barnes received a discharge on January 25, 2006. She now seeks dismissal of Schultz's appeal as moot. Schultz does not contest Barnes' assertion that any liability arising from his claims has been discharged and our review of the record and exhibits from the bankruptcy proceeding leads to the same conclusion.
Rule of Appellate Procedure 8 sets out the procedure for stay of an appeal during a bankruptcy proceeding. It does not address discharge of potential liability during an appeal. A discharge in bankruptcy renders void a judgment, obtained at any time, determining the personal liability of the debtor with respect to a discharged debt. 11 U.S.C. § 524(a)(1); In re Dabrowski, 257 B.R. 394 (Bankr. S.D.N.Y., 2001). Since any judgment resulting from this appeal that determined Barnes' personal liability to Schultz would be void, the appeal is moot. We have no jurisdiction to decide a moot controversy. National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). We therefore dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).
James T. Campbell
Justice
fferent than the others. Birkenfeld followed him until the suspect was lost in an apartment complex. Appellant was soon discovered by other officers hiding behind a bush in an alley by the apartment complex. Upon seeing the detainee, Birkenfeld identified him as the person with the gun. This identification was reiterated at trial. A sawed-off shotgun was also found lying in weeds within five to ten feet of where appellant was arrested and within the alley wherein appellant ran.
At trial, appellant attempted to discredit Birkenfeld's testimony by focusing on the fact that the officer did not know what the other three individuals were wearing and, therefore, may have confused appellant with one of the others. So too was it of import to appellant that his fingerprints were not found on the weapon. Appellant also tried to show that someone other than he could have been the person who actually had the gun. Despite this, Birkenfeld reiterated that he was not mistaken in identifying appellant as the "one who was carrying the rifle [sic]."
Testifying on his own behalf, appellant said that he had been at home in the early hours of August 19th but some friends had come by and asked him to attend a party. In fact, two parties were occurring at different ends of his apartment complex. He attended the one that was closest to his apartment and drank beer for about two hours. At the time, he purportedly observed an individual in possession of what he believed to be a firearm, even though he was not sure what the object was. Once the police showed up everyone scattered. According to appellant, he ran because he had been in trouble with the police before and had been drinking. He also denied possessing the firearm.
The defense also called Vernon Raynard Anderson, who testified that he was with appellant the night of the incident and did not observe appellant carrying a gun. Yet, he acknowledged that he left the party around midnight and was not present when the police arrived.
Issues One - Eight - Legal and Factual SufficiencyThrough his eight issues, appellant contends that the evidence was both legally and factually insufficient to 1) prove he exercised care, custody or control over the weapon or 2) affirmatively link him to the weapon. We overrule the issues.
Standard of Review
The applicable standards of review can be found in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.1996), Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to them.
Next, in establishing possession, we use the same methodology used to establish guilt for possessing controlled substances. Nguyen v. State, 54 S.W.3d 49, 52-53 (Tex. App.-Texarkana 2001, pet. ref'd). Thus, the State must show that the accused 1) exercised actual care, control, or custody over the firearm, 2) was conscious of his connection with it, and (3) possessed the firearm knowingly or intentionally. Id. citing, Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995).
The record before us contains eyewitness testimony identifying appellant as the one who possessed and ran with the shotgun. Whether to believe it was up to the factfinder. But, if believed, it provided some evidence upon which a rational jury could conclude, beyond reasonable doubt, that appellant intentionally or knowingly possessed the weapon.
To the extent appellant and others gave testimony that contradicted Birkenfeld's, we again note that it was the jury's prerogative to choose who to believe. Moreover, other evidence such as appellant's effort to flee and hide as well as the proximity between the shotgun's location and appellant's place of arrest lend further credence to the officer's identification of appellant as the possessor.
In sum, viewing all the evidence in the light most favorable to the verdict leads us to conclude that both verdicts enjoyed the support of legally sufficient evidence. And though the evidence was contradictory, the verdicts were not against the great weight and preponderance of the evidence nor clearly wrong or manifestly unjust. So, they too were supported by factually sufficient evidence.
Accordingly, we affirm the judgments of the trial court.
Per Curiam
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