IN THE
TENTH COURT OF APPEALS
No. 10-12-00483-CR
HAROLD ALEXANDER JACKSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court No. 11-067-CR
MEMORANDUM OPINION
In three issues, appellant, Harold Alexander Jackson, challenges his conviction
for unlawful possession of a firearm by a felon, a third-degree felony. See TEX. PENAL
CODE ANN. § 46.04(a), (e) (West 2011). We affirm.
I. BACKGROUND
In the instant case, Jackson was charged by indictment with unlawful possession
of a firearm by a felon. Included in the indictment were enhancement paragraphs
referencing Jackson’s prior convictions for felony burglary of a building and felony
possession of a controlled substance. At trial, Jackson pleaded “true” to the
enhancement paragraph referencing his conviction for felony possession of a controlled
substance. At the conclusion of the trial, the jury found Jackson guilty of the charged
offense. The trial court subsequently sentenced Jackson to eight years’ confinement,
suspended the sentence, and placed Jackson on community supervision for eight years.
In addition, the trial court ordered that Jackson serve 180 days in the county jail and
participate in 192 hours of community service as conditions of his community
supervision. This appeal followed.
II. THE JURY CHARGE
In his second and third issues, Jackson asserts that he was egregiously harmed by
the trial court’s failure to properly define: (1) “possession” with regard to the issue of
voluntariness; and (2) “intentionally” and “knowingly” in the jury charge.
A. Applicable Law
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm
Jackson v. State Page 2
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Jackson admits that he did not object to the jury charge; thus, he must show
egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious
harm, we consider the entire jury charge, the state of the evidence, the final arguments
of the parties, and any other relevant information revealed by the record of the trial as a
whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is
egregiously harmful if it affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719
(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
B. Discussion
Here, the charge defined possession as involving the “care, custody, control, or
management of property.” This language tracks section 1.07(a)(39) of the penal code.
See TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2013). The charge also provided
complete statutory definitions for “intentionally” and “knowingly.” See id. § 6.03(a)-(b)
(West 2011). Specifically, the definitions section of the charge stated the following:
A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct when
he is aware of the nature of his conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause
the result.
Jackson v. State Page 3
The application portion of the charge provided:
Now, if you find from the evidence beyond a reasonable doubt on or
about the 16th day of December, 2010 that the defendant, HAROLD
ALEXANDER JACKSON, having been previously convicted of a felony
on the 15th day of January, 1992, in cause number 16,637 in the 86th
District Court of Kaufman County, Texas in a case on the docket of said
Court, and entitled The State of Texas vs[.] Harold Alexander Jackson, did
then and there intentionally and knowingly possess a firearm after the
fifth anniversary of the defendant’s release from confinement following
conviction of said felony at a location other than the premises at which the
defendant lived, to wit: Freestone County Road 240, Freestone County,
Texas, then you will find the defendant guilty of the offense of unlawful
possession of a firearm as charged in the indictment.
Jackson complains that the charge should have included language contained in
section 6.01(b) of the penal code, which provides that possession is voluntary if the
possessor knowingly obtains or receives the thing possessed or is aware of his control of
the things for a sufficient time to permit him to terminate his control. Id. § 6.01(b) (West
2011). Jackson also contends that the charge’s definitions of “intentionally” and
“knowingly” were not appropriately tailored to the offense. More specifically, Jackson
argues that these definitions should have been limited to the “nature-of-the conduct”
and the “circumstances-surrounding-the conduct” aspects of the requisite culpable
mental states.
Assuming, without deciding, that it was error for the trial court to not include a
6.01(b) instruction as to voluntariness and to not limit the definitions of “intentionally”
and knowingly,” we cannot say that Jackson was egregiously harmed. John Thorn, a
Game Warden with the Texas Parks and Wildlife Department, testified that he received
a call from Charles Meyers about “road hunters” by the Plum farm near FM 489 and
Jackson v. State Page 4
County Road 240 in Freestone County, Texas. Warden Thorn was told that the “road
hunters” had positioned their truck sideways in the road with its headlights shining out
in the field. When he arrived at the scene, Warden Thorn observed two of the
occupants of the truck standing outside with two of their rifles placed on the hood of a
patrol car. Warden Thorn inspected the truck and saw that Jackson was still sitting in
the passenger’s seat. The occupants of the truck denied that there were any more guns
in the truck. However, after Jackson exited the vehicle, Warden Thorn noticed the “butt
of a rifle that was between the door and the passenger, the right, the front passenger
seat that was stopped was upfront and the barrel was pointing back.” The rifle was a
.270-caliber Remington Model 710; however, the removable magazine was not present
with the rifle.
Law enforcement at the scene later found a magazine for a .270-caliber
Remington Model 710 in Jackson’s jacket pocket. Inside the magazine was “one Harley
brand .270 loaded cartridge . . . .” A loaded .308 round was also found in the floorboard
on the passenger side, between the front and back seat. Scott Pedford, one of the
occupants of the truck, testified that, when law enforcement arrived, two rifles were
found in the floorboard of the truck. Warden Thorn explained that these two rifles, in
particular, were accessible to “[a]nybody in the car.” Pedford also admitted that
Jackson knew there were guns in the truck that were intended to be used for hunting.
In his closing argument, defense counsel argued that the evidence did not
demonstrate that Jackson was in possession of a firearm. Defense counsel emphasized
that Jackson did not own the guns and that Pedford had tried to hide the rifles before
Jackson v. State Page 5
the police arrived. In essence, defense counsel asserted that Jackson was not guilty of
the charged offense because he was merely in the vicinity of a gun.
As noted above, in determining the actual degree of harm, we examine the entire
jury charge, the state of the evidence, including contested issues and weight of
probative evidence, the arguments of counsel, and other relevant information revealed
by the record of the trial as a whole. See Olivas, 202 S.W.3d at 144; see also Almanza, 686
S.W.2d at 171. Based on our review of the entire record, we do not believe that the
purported error affected the very basis of the case, deprived Jackson of a valuable right,
or vitally affected his defensive theory. See Olivas, 202 S.W.3d at 144; see also Almanza,
686 S.W.2d at 171. There was ample evidence demonstrating that Jackson’s connection
to the firearms was not merely fortuitous, and the jury could reasonably infer that
Jackson exercised care, custody, control, or management over the firearms voluntarily.
See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); see also Hart v. State,
89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating that a jury may infer intent or
knowledge from any facts that tend to prove its existence, including the acts, words,
and conduct of the accused).
Moreover, the facts, as applied to the law in the application paragraph, pointed
the jury to the appropriate portion of the definitions of “intentionally” and
“knowingly.” See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995)
(concluding, in a capital-murder case, that it was error for the trial court to not limit
additional language concerning the culpable mental state to proving the “conduct
element” of the underlying offense; however, “[r]eferring back to the definitions of
Jackson v. State Page 6
culpable mental states, it is obvious that the ‘result of conduct’ and cause the result
language are the applicable portions of the full code definitions. We conclude that
because the facts, as applied to the law in the application paragraph, pointed the jury to
the appropriate portion of the definitions, no harm resulted from the court’s failure to
limit the definitions of the culpable mental states to proving the conduct element of the
underlying offense.”); see also Fields v. State, 966 S.W.2d 736, 730-40 (Tex. App.—San
Antonio 1998), rev’d on other grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999) (concluding
that the failure to limit mental states constitutes error; however, the error was
harmless). Accordingly, we cannot say that Jackson was egregiously harmed by the
charge, as presented. See Olivas, 202 S.W.3d at 144; see also Almanza, 686 S.W.2d at 171.
We therefore overrule Jackson’s second and third issues.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Jackson contends that the evidence is insufficient to establish
that he intentionally, knowingly, or voluntarily possessed a firearm. We disagree.
A. Applicable Law
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
“familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
Jackson v. State Page 7
draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. “Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.
Id.
Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
the conflicts in favor of the prosecution and therefore defer to that determination.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial
evidence are treated equally: “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that
the factfinder is entitled to judge the credibility of the witnesses and can choose to
believe all, some, or none of the testimony presented by the parties. Chambers v. State,
805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
Jackson v. State Page 8
To prove unlawful possession of a firearm by a felon, the State is required to
prove that the person possessed a firearm: (1) “after conviction and before the fifth
anniversary of the person’s release from confinement following conviction of the felony
or the person’s release from supervision under community supervision, parole, or
mandatory supervision, whichever is later”; or (2) after the period described by
subdivision one, at any location other than the premises at which the person lives. TEX.
PENAL CODE ANN. § 46.04(a). As noted above, the penal code defines possession as
“actual care, custody, control, or management.” Id. § 1.07(a)(39). A person commits a
possession offense only if he voluntarily possesses the prohibited item. Id. § 6.01(a)
(West 2011). Possession is voluntary if the possessor knowingly obtains or receives the
thing possessed or is aware of his control of the things for a sufficient time to permit
him to terminate his control. Id. § 6.01(b).
The State must show: (1) that the accused exercised actual care, custody, control,
or management over the firearm; (2) that he was conscious of his connection with it; and
(3) that he possessed the firearm knowingly or intentionally. Bates v. State, 155 S.W.3d
212, 216 (Tex. App.—Dallas 2004, no pet.); Smith v. State, 118 S.W.3d 838, 841 (Tex.
App.—Texarkana 2003, no pet.). The State’s evidence may be either direct or
circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The State
does not have to prove that the accused had exclusive possession of the firearm; joint
possession is sufficient to sustain a conviction. Smith v. State, 176 S.W.3d 907, 916 (Tex.
App.—Dallas 2005, pet. ref’d) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App.
1986)).
Jackson v. State Page 9
If the firearm is not found on the defendant’s person or is not seen in the
defendant’s exclusive care, custody, control, or management, the State must offer
additional, independent facts and circumstances that link the defendant to the firearm.
Sutton v. State, 328 S.W.3d 73, 76 (Tex. App.—Fort Worth 2010, no pet.) (citing Villarreal
v. State, Nos. 2-07-329-CR, 2-07-330-CR, 2009 Tex. App. LEXIS 1823, at **3-4 (Tex.
App.—Fort Worth Mar. 12, 2009, pet. ref’d) (mem. op., not designated for publication)
(“The . . . links doctrine applies to the possession of firearms.”)); see Bates, 155 S.W.3d at
216-17. The purpose of linking the accused to the firearm is to protect an innocent
bystander from conviction solely on his fortuitous proximity to a firearm. See Poindexter
v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); see also Allen v. State, 249 S.W.3d
680, 695 (Tex. App.—Austin 2008, no pet.) (“Proof of mere proximity to contraband is
insufficient to establish actual constructive possession or the element of knowledge.
Close proximity to the contraband, even when coupled with mere presence at the place
where the contraband is found, do not together justify a finding of knowing possession
of the contraband.”).
In determining whether sufficient links exist, an appellate court examines factors,
such as whether the defendant owned the premises where the firearm was found,
whether the firearm was in plain view, whether the defendant made incriminating
statements, whether the defendant was in close proximity to the firearm and had ready
access to it, whether the defendant attempted to flee, whether the defendant’s conduct
indicated a consciousness of guilt, whether the defendant had a special connection to
the firearm, and whether the firearm was found in an enclosed space. Smith, 176 S.W.3d
Jackson v. State Page 10
at 916; Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.—Beaumont 1996, no pet.). It is the
logical force of the factors, not the number of factors present, that determine whether
the elements of the offense have been established. See Smith, 176 S.W.3d at 916.
B. Discussion
As we explained in our analysis of Jackson’s jury-charge issues, Warden Thorn
received a call that “road hunters” had positioned their truck sideways in the road with
headlights shining out in the field. When he arrived, Warden Thorn observed two
occupants, including Pedford, standing outside the truck with two rifles that had been
discovered inside the truck and subsequently placed on top of a patrol car. Warden
Thorn also saw Jackson inside the truck in the passenger’s seat. The occupants of the
truck denied that they had any other guns in their possession. However, once Jackson
exited the vehicle, Warden Thorn observed a .270-caliber Remington Model 710 located
between the door and seat on the passenger’s side. The rifle’s magazine was missing.
Law enforcement later found the missing magazine for the Remington Model 710
rifle inside Jackson’s jacket pocket; the magazine contained one round. A loaded .308
round was also found in the floorboard on the passenger side, between the front and
back seat. Pedford testified that the two rifles initially confiscated by law enforcement
were located in the floorboard of the truck—an enclosed space. Warden Thorn
explained that these two rifles in particular were accessible to “[a]nybody in the car.”
Pedford later admitted that Jackson knew there were guns in truck that were intended
to be used for hunting. Warden Thorn also testified that, at the time of trial, none of the
occupants of the truck had claimed ownership of the rifle found in Jackson’s proximity.
Jackson v. State Page 11
Nevertheless, Pedford, Jackson’s friend for more than ten years, claimed ownership of
the rifle at trial. Pedford also denied handing Jackson the magazine from the rifle;
instead, he speculated that the magazine “had to be on the floor.”
Based on our review of the record, there was ample evidence demonstrating that
Jackson’s connection to the firearms was not merely fortuitous, and the jury could
reasonably infer that Jackson exercised care, custody, control, or management over the
firearms voluntarily. See Poindexter, 153 S.W.3d at 406; see also Hart, 89 S.W.3d at 64.
Moreover, based on the logical force of the factors articulated in Smith and Dixon, we
conclude that the elements of the offense—unlawful possession of a firearm by a
felon—have been established. See Smith, 176 S.W.3d at 916; Dixon, 918 S.W.3d at 681.
And to the extent that Pedford’s testimony created conflicts in the evidence, we note
that it is within the discretion of the factfinder—the jury, here—to resolve any conflicts
in the testimony, and we are to defer to the jury’s resolution of such conflicts. See
Jackson, 443 U.S. at 326, 99 S. Ct. 2792-93; see also Chambers, 805 S.W.2d at 461. Clearly,
by convicting Jackson of the charged offense, the jury resolved any conflicts in the
evidence against Jackson. We therefore conclude that the record contains sufficient
evidence to support Jackson’s conviction for unlawful possession of a firearm by a
felon. See TEX. PENAL CODE ANN. § 46.04(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Lucio, 351 S.W.3d at 894; Bates, 155 S.W.3d at 216; Smith, 118 S.W.3d at 841. We
overrule Jackson’s first issue.
Jackson v. State Page 12
IV. CONCLUSION
Having overruled all of Jackson’s issues on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 27, 2014
Do not publish
[CR25]
Jackson v. State Page 13
Harold Alexander Jackson v. State
Combined Opinion