ACCEPTED
06-14-00116-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
5/4/2015 10:45:47 PM
DEBBIE AUTREY
CLERK
NO. 06-14-00116-CR & 06-14-00117-CR
____________________________________________________________
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS 5/5/2015 9:09:00 AM
DEBBIE AUTREY
SIXTH DISTRICT Clerk
AT TEXARKANA, TEXAS
____________________________________________________________
JOSEPH JOHN GRUBBS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________________________________
APPEAL IN CAUSE NUMBERS 29,725 & 29,417
IN THE 354TH JUDICIAL DISTRICT COURT
OF HUNT COUNTY, TEXAS
____________________________________________________________
BRIEF FOR APPELLANT
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now the Appellant and submits this brief pursuant to the provisions
of the Texas Rules of Appellate Procedure in support of his request for the
judgment of conviction to be overturned in Cause No. 29,725 & 29,417
Appellant Requests Oral Argument
IDENTITY OF PARTIES AND COUNSEL
Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011
Appellant’s Trial Attorney:
Toby Wilkinson
2815 Wesley St.
Greenville, TX 75401
Appellee:
The State of Texas by and through
Noble Walker
Steven Lilley
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
Appellee’s Trial Counsel:
Lauren Hudgeons
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
2
TABLE OF CONTENTS
Identity of the Parties and Counsel ............................................................. 2
Table of Contents ....................................................................................... 3
Index of Authorities ..................................................................................... 4
Statement of the Case ................................................................................ 5
Issue Presented .......................................................................................... 6
Statement of the Facts ................................................................................ 7
Summary of the Argument .......................................................................... 8
Argument and Authorities ........................................................................... 9
Issue Number One ........................................................................... 9
The evidence is legally insufficient to support the conviction of
Appellant for unlawful possession of a firearm by a felon or
possession of identifying information.
Prayer for relief ........................................................................................ 19
Certificate Compliance of Typeface and Word Count................................ 20
Certificate of Service ................................................................................. 20
3
INDEX OF AUTHORITIES
FEDERAL CASE:
Jackson v. Virginia, 443 U.S. 307. .............................................................. 9
STATE CASES:
Bates v. State, 155 S.W.3d 212, 216-217 (Tex. App. Dallas 2004, not
pet.). ......................................................................................................... 10
Evans v. State 202 S.W. 3d 158, 166 (Tex. Crim. App. 2006)................... 11
James v. State, 264 S.W. 3d 215, 219 (Tex. App. Houston [1st Dist.] 2008,
pet. ref’d) .................................................................................................. 11
Jones v. State, 963 S.W.2d 826, 830 (Tex. App. Texarkana 1998, pet. ref’d).
................................................................................................................. 13
Nguyen v. State, 54 S.W.3d 49, 59 (Tex. App. Texarkana 2001, pet ref’d)12
Smith v. State, 118 S.W.3d 838, 842 (Tex. App. Texarkana 2003). .......... 10
Smith v. State, 176 S.W. 3d 907, 916 (Tex. App. Dallas 2005, pet. ref’d) . 10
Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App. 2005) ............... 9
STATE STATUTES:
TEX. PEN. CODE ANN §1.07(a)(39) (Casemaker 2015) ............................ 9
TEX. PEN. CODE ANN §6.01 (Casemaker 2015) ...................................... 9
TEX. PEN. CODE ANN §32.51(b-1)(1) (Casemaker 2015) ......................... 9
TEX. PEN. CODE ANN §46.04(a)(1) (Casemaker 2015) ............................ 9
4
STATEMENT OF THE CASE
This is an appeal of two judgments and sentences in criminal cases
for the 354th Judicial District, in Hunt County, Texas. Appellant was
convicted by a jury for Unlawful possession of firearm by felon and unlawful
possession of identifying information. Appellant was assessed a sentence
of twenty five (25) years imprisonment for possession of a firearm by a
felon and five (5) years imprisonment for possession of identifying
information on July 3, 2014 by a jury. Notice of appeal was given on July
8, 2014. The clerk's record was filed November 10, 2014. The reporter's
record was filed on February 11, 2014.
5
ISSUES PRESENTED
ISSUE ONE:
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE
CONVICTION OF APPELLANT UNLAWFUL POSSESSION OF A
FIREARM BY A FELON OR UNLAWFUL POSSESSION OF
IDENTIFYING INFORMATION.
6
STATEMENT OF THE FACTS
At trial a Hunt County Deputy named Jay Shallow testified that on
August 12, 2013, he responded to a call at a residence in Quinlan, TX. (RR
Vol. 10 p. 46). Elizabeth Land and Appellant Grubbs were present at that
residence that night and had apparently had an argument. (RR Vol. 10 p.
91). The Residence and the truck and SUV parked there belonged to Land’s
sister and her husband. Also parked near the residence was the truck that
belonged to Appellant. (RR Vol. 10 p. 90).
Deputy Shallow, stated at trial that after he had made contact with
Appellant he noticed Land emerge from the darkness and then detained
Appellant. Shallow then said he searched the area where Appellant had
come from. Shallow looked in their area slightly under a pickup truck and
found a .25 caliber pistol from that area as well as five debit cards with a
different person’s name on them. (RR Vol. 10 p. 51). Later, Shallow testified
that he found a .25 caliber bullet in the hands of Appellant. (RR Vol. 10 p.
54). Deputy Shallow admitted that he did not investigate who the pickup or
the SUV belonged to, and had the he known one of the pickups belonged to
Appellant he would have ‘possibly’ put it in his report but did not. (RR Vol.
10 p. 71).
7
SUMMARY OF THE ARGUMENTS
Issue One:
The evidence is legally insufficient to support the conviction of
Appellant for unlawful possession of a firearm or the conviction of unlawful
possession of identifying information.
The evidence must show affirmative links between the defendant and
the contraband at the scene.
Even when looking at all the evidence in the light most favorable
to the State, the evidence does not establish that the logical force of the
evidence affirmatively links the firearm or the debit cards, found at the
location where Appellant was arrested, to the Appellant himself. Simply
stated, there is a complete lack of evidence to establish any affirmative link,
which is required to sustain Appellant’s conviction.
8
ARGUMENT
Issue One: The evidence is legally insufficient to support the
conviction of Appellant for unlawful possession of a firearm,
or identifying information
When reviewing legal sufficiency of the evidence, a Court must look at
all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found that the essential elements
of the offense were proven beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319; Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App.
2005). To support a conviction of the appellant, the State must prove beyond
a reasonable doubt that Grubbs was previously convicted of a felony offense
and possessed a firearm after the conviction, and before the fifth anniversary
of his release from confinement or from supervision, whichever date is later.
TEX. PEN. CODE ANN §46.04(a)(1) (Casemaker 2015). State must have
further proved that Grubbs possessed with the intent to defraud, identifying
information of another person without the other persons consent. TEX. PEN.
CODE ANN §32.51(b)(1). (Casemaker 2015). The actor is presumed to
have the intent to harm or defraud another if the actor possess three or more
other persons’ information. TEX. PEN. CODE ANN §32.51(b-1)(1).
(Casemaker 2015).
9
In this case both charges against Appellant relate to the possession of
items found, a .25 caliber gun and debit cards (Contraband) were within
close proximity to each other. (RR Vol. 10 p. 51). Therefore in Appellant’s
analysis as to the insufficient evidence as to whether Appellant actually
possessed the contraband are made together.
Possession means actual care, custody, control or management. TEX.
PEN. CODE ANN §1.07(a)(39) (Casemaker 2015). A person commits a
possession offense only if he voluntarily possesses the prohibited item. TEX.
PEN. CODE ANN §6.01(a) (Casemaker 2015). Possession is a voluntary act
if the possessor knowingly obtains or receives the thing possessed or is
aware of his control of the thing for a sufficient time to permit him to terminate
his control. TEX. PEN. CODE ANN §6.01(b) (Casemaker 2015).
The State must prove that appellant exercised actual care, control, or
custody of the firearm; he was conscious of his connection with the firearm;
and he possessed the firearm knowingly or intentionally. Smith v. State, 118
S.W.3d 838, 842 (Tex. App. Texarkana 2003).
If the firearm is not found on the defendant or is not in his exclusive
possession, the evidence must affirmatively link him to the firearm. Bates v.
State, 155 S.W.3d 212, 216-217 (Tex. App. Dallas 2004, not pet.). The State
may establish possession by proving links which demonstrate that the
10
defendant was conscious of his connection with the weapon and knew what
it was. James v. State, 264 S.W. 3d 215, 219 (Tex. App. Houston [1st Dist.]
2008, pet. ref’d).
This rule protects the innocent bystander, such as a relative, friend, or
even stranger to the actual possessor, from conviction merely because of his
fortuitous proximity to a firearm belonging to someone else. Evans v. State
202 S.W. 3d 158, 166 (Tex. Crim. App. 2006); Smith v. State, 176 S.W. 3d
907, 916 (Tex. App. Dallas 2005, pet. ref’d). Factors that may establish
affirmative links to a firearm 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; (10) affirmative statements connect the accused to
the contraband.
11
Nguyen v. State, 54 S.W.3d 49, 59 (Tex. App. Texarkana 2001, pet
ref’d).
In Bates, that Court also stated that another relevant factor is if the
defendant attempted to flee. Bates v. State, 155 S.W. 3d 212, 217. Even
though there is no set formula of facts that would lead to a finding of a
sufficient amount of links, the Court of Criminal Appeals states that the logical
force of the evidence is dispositive, not the number of links. Evans v. State
202 S.W. 3d 158, 166 (Tex. Crim. App. 2006).
Applying the factors and accompanying logical force of the evidence
standard set out in Evans, the State insufficiently relied on evidence which
was not enough to create the logical force necessary to allow a rational juror
to find that the appellant had the requisite knowledge and control over the
gun and credit cards that were found underneath the vehicle.
In this case, the State did not prove beyond a reasonable doubt that
Grubbs knowingly or intentionally possessed the contraband that day. Here,
Grubbs was not seen to be in direct possession of the gun found by the
Deputy by the testifying officer or any other witness.
Regardless of whether direct or circumstantial evidence is used, the
State must still establish that the accused’s connection to the substance is
12
not merely fortuitous. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.
Texarkana 1998, pet. ref’d). Moreover, mere possession of a vehicle in
which contraband is found, without additional facts and circumstances
connecting the accused to the contraband, will not support a conviction for
possession. Id. And at the case at bar, Grubbs was not even definitively
identified to be in possession of one of the particular vehicles at the time the
Deputy arrived on scene.
The contraband was not affirmatively linked to Ms. Grubbs in the
evidence presented at trial. Alternatively, no affirmative link can be made
taking into account the factors listed the Nguyen case.
1. Was the contraband in a car driven by the accused?
In this case the answer is no. However, even though this factor is listed
first in Nguyen, its importance is diminished with the facts of this case
because the location of the contraband was found was so remote. Here the
contraband was found to be partially underneath a vehicle. (RR Vol. 10 p.
51).
13
2. Was the contraband in a place owned by the accused?
No, the house was owned by Elizabeth Land’s Sister and her husband.
(RR Vol. 10 p. 88). The state provided no other link of the Appellant to the
property.
3. Was the contraband conveniently accessible to the accused?
Even though when the Deputy arrived the area was dark, he stated
that Appellant came from the area where contraband was ultimately found.
(RR Vol. 10 p. 51). Yet there was no evidence presented that the contraband
conveniently accessible to Grubbs or any other person.
4. Was the contraband in plain view?
As stated in factor number 3 when the Deputy arrived the area was
dark. But the deputy had the added benefit of the use of a flashlight where
the Appellant did not. (See Sates Exhibit 7). Meaning, the Appellant could
have been close to the contraband and not know it because of the lack of
light. Thus he would not have lingered near someone else’s contraband.
14
5. Was the contraband found in an enclosed space?
The space where the contraband was found, through the testimony of
the witness at trial was relatively open and could be assessable by others
before the Deputy arrived. In fact, the Deputy admitted that anyone could
have possessed the firearm and debit cards before he got there. (RR Vol.
10 p. 81).
6. Was the contraband found on the same side of the car as the
accused?
As stated above the Deputy stated that Appellant came from the area
where contraband was ultimately found. But no more pinpointing evidence
was given. Not even so much as that the deputy observed Appellant
standing towards the front or rear of the side of the vehicle and that was the
same place the Deputy found the contraband.
7. Did the conduct of the accused indicate a consciousness of guilt?
In this case, there was no testimony that reflected any indication that
Grubbs had a consciousness of guilt. Merely that he was sweaty and that
he was not wearing a shirt. (RR Vol. 10 p. 48)
15
8. Did the accused have a special relationship to the contraband?
There is no evidence that indicated Grubbs had a special relationship
or even a connection to the gun.
9. Did occupants of the automobile give conflicting statements about
relevant matters?
No, both Appellant and Land denied a gun was involved. (RR Vol. 10
p. 50).
10. Any affirmative statements connect the accused to the
contraband?
Grubbs denied ownership of the gun at the time he was arrested.
11. Did the defendant attempt to flee?
Here, there is no evidence that Grubbs attempted to flee. There was
no evidence that Grubbs tried to evade the Deputy when the Deputy arrived,
or even tried to run when he was pulled over. The only evidence given at
trial is that Grubbs pulled over and was
The Evans case further states that the above is not an inclusive list for
affirmative links. Id. at 162 n.12. In other words, other factors may be taken
16
into consideration in establishing a link between the accused and the
contraband.
In this case, an additional factor warrants consideration: Were
fingerprints taken?
If the contraband found at the scene was in Grubbs’ direct possession
at some point, and then hidden by Grubbs, it could have his fingerprints
somewhere on the gun. Here, extraction of fingerprints from the gun was
attempted but not found (RR Vol. 10 p. 117). Thus the affirmative link to
possession in this case is weakened even further
The contraband was never found in Grubbs’ exclusive possession.
The State did not prove that appellant exercised actual care, control, or
custody of the contraband; he was conscious of his connection with the
firearm; and he possessed the firearm or even the debit cards knowingly or
intentionally.
The Deputy does indeed state that Appellant had a bullet in his hand
matching the gun that was found, but there is no other evidence Appellant
possessed the actual firearm. Moreover, Appellant was not identified as the
person holding the gun by the 911 caller, again because they could not see.
In this case there were at least three other people who had access to the
residence where Appellant. They were Elizabeth Land, her sister and her
17
sister’s husband. The video in this case shows at least two other officers
and even a police dog. Yet, little to none of the evidence they found if any
was presented at trial.
Therefore, even resolving any facts in the State’s favor, there is
insufficient evidence to affirmatively link Grubbs to the contraband found
near a vehicle not definitively determined and his that was parked on
property that belongs to someone else. After an examination of the all
evidence and relevant factors, the logical force of the evidence dictates that
no affirmative link exists between Grubbs and the contraband. Grubbs’ mere
location is not enough to connect him to the contraband. Grubbs was
convicted based solely upon his fortuitous and remote proximity to the
contraband found near a vehicle parked on someone else’s property.
Therefore his conviction should be overturned.
18
PRAYER FOR RELIEF
Wherefore, premises considered, Appellant respectfully prays that his
conviction in each of the above entitled and numbered causes be reversed
and acquit him. In the alternative Court finds only insufficient evidence in
one case that it at least be reversed. Appellant further prays for all other
lawful relief to which he may be entitled, at law or in equity.
Respectfully submitted,
/s/ Jason A. Duff_______
Jason A. Duff
State Bar No. 24059696
2615 Lee Street
P.O. Box 11
Greenville, TX 75403-0011
Attorney for the Appellant
19
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i),
the undersigned attorney or record certifies that Appellant's Brief contains
14-point typeface of the body of the brief, 12-point typeface for footnotes in
the brief and contains 2,222 words, excluding those words identified as not
being counted in appellate rule of procedure 9.4(i)(1), and was prepared on
Microsoft Word 2010.
____/s/ Jason A. Duff____ _________
Jason A. Duff
Attorney for the Appellee
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to attorneys of record by electronic mail, and to
the Court of Appeals Sixth District in Texarkana via Electronic Filing System
on this the Fourth Day of May, 2015.
____/s/ Jason A. Duff____ _________
Jason A. Duff
Attorney for the Appellant
20