In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-17-00327-CR
___________________
STEPHEN ROBERT BARLOW, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 15-09-10108-CR
__________________________________________________________________
OPINION
A state statute makes it unlawful for a person, previously convicted of a
felony, to possess a firearm. 1 A separate statute defines “possession” to mean “actual
care, custody, control or management.” 2 Following a jury trial, Stephen Robert
1
See Tex. Penal Code Ann. § 46.04 (West 2011) (the felon in possession
statute).
2
Id. § 1.07 (a)(39) (West Supp. 2018).
1
Barlow was found guilty of violating the felon-in-possession statute. On appeal,
Barlow seeks to overturn his conviction, arguing the evidence admitted in his trial
fails to show he knowingly or intentionally possessed the firearm found in a car a
deputy sheriff saw him leaving a short time before his arrest. In a second issue,
Barlow argues the trial court prejudiced his defense by allowing the prosecutor to
introduce hearsay evidence about what two witnesses told the deputy during his
investigation that led to Barlow’s arrest. We conclude Barlow’s issues are without
merit and affirm the trial court’s judgment.
Background
In September 2015, Deputy Sheriff Kenneth Provenzano arrested Barlow after
conducting an investigation that led the deputy to believe that Barlow had violated
the felon-in-possession statute. 3 The evidence in the trial shows that while patrolling
a residential area in Montgomery County, Deputy Provenzano decided to investigate
why a group of men were standing around a car with several people inside, which
the deputy saw parked in the driveway in front of someone’s home. When the deputy
approached the men, the man who was in the car’s front seat as well as the other men
in and around the car began to walk away. The deputy, after telling the men he saw
3
See id. § 46.04.
2
leaving the car to return, talked to three of the men: (1) the driver; (2) the front-seat
passenger; and (3) the back-seat passenger.
When Deputy Provenzano asked the man he saw leave the car’s front seat his
name, the man told the deputy he was Stephen Barlow. Then, Barlow told the deputy
that a shotgun, used in a recent robbery, was located inside a backpack on the
floorboard below his feet. And Barlow told the deputy the gun did not belong to him.
Deputy Provenzano then searched Barlow, discovering a yellow, twenty-gauge
shotgun shell in Barlow’s pocket. In the course of the investigation, Deputy
Provenzano checked Barlow’s criminal background and learned that Barlow had
previously been convicted of a felony. The deputy also spoke to the two other men
he saw leaving the car, Darrel Creel, the driver, and Mason Shankle, who left the
car’s back seat.
A short time later, Deputy Provenzano searched the car. In the search, the
deputy located the shotgun in the exact location where Barlow told him he had seen
the backpack in the car. After determining that the shotgun had the same type of
shell in it that he found in Barlow’s pocket, Deputy Provenzano arrested Barlow for
violating the felon-in-possession statute.
3
In December 2015, a grand jury charged Barlow with violating the felon-in-
possession statute. 4 In March 2017, the case against Barlow went to trial. The State
called two witnesses in the guilt-innocence phase of Barlow’s trial, Deputy
Provenzano and Larry Melton. Deputy Provenzano testified that Barlow told him
about the shotgun and that he found a shotgun shell in Barlow’s pocket and a
backpack lying on the floorboard close to where he saw Barlow sitting when Barlow
was in the car. The trial court also admitted a dashcam video recording captured by
a recorder in Deputy Provenzano’s police car. The video, which the jury viewed, is
consistent with Deputy Provenzano’s testimony that Barlow left the front-passenger
seat of the car when the deputy approached it. Melton, an investigator with the
Montgomery County District Attorney’s Office, testified that Barlow had previously
been convicted for possessing a controlled substance, a state jail felony.5
4
Id. § 46.04(a) (prohibiting a felon from possessing a firearm anywhere—
including in his home—for a period of five years starting from the date the convicted
felon completes his sentence).
5
Melton’s testimony and exhibits admitted in Barlow’s trial established that
in May 2013, Barlow pleaded guilty to an indictment charging him with a state jail
felony based on his possession of a controlled substance. See Tex. Health & Safety
Code Ann. § 481.115(b) (West 2017). Barlow does not argue the evidence is
insufficient to support the jury’s finding that he had been convicted of a prior felony
before he was arrested for violating the felon-in-possession statute.
4
Barlow called one witness, Joshua Cravens, to testify in his defense.
According to Cravens, he and three others, Matthew Cravens (his older brother),
Creel, and Shankle were in the car when Creel drove them to the house where Barlow
was arrested that night. Cravens explained that he did not talk to the police because
when he saw a police car approaching the car, he ran away. According to Cravens
(1) the shotgun the deputy found in the car belonged to his older brother, (2) Barlow
was not with the men in the car when Creel drove the car to the house, (3) he first
saw Barlow after the car stopped in the driveway, (4) he saw two backpacks and a
shotgun on the way to the house while sitting in the back seat of Creel’s car, (5) at
no time did he ever see Barlow holding anything in his hands, (6) he never saw
Barlow get into the car, and (7) he never saw Barlow with the backpack in the car.
Cravens also testified that Matthew appeared excited when he learned the deputy
arrested Barlow for possessing the shotgun.
We need to provide some additional details about Deputy Provenzano’s
testimony to address Barlow’s second issue, in which Barlow argues the trial court
erroneously overruled the hearsay objection he lodged to parts of Deputy
Provenzano’s testimony. According to Barlow, the trial court should not have
allowed the prosecutor to question Deputy Provenzano about what he learned from
5
two of the men the deputy questioned during the investigation that led to Barlow’s
arrest.
The reporter’s record from the trial shows that when the prosecutor questioned
Deputy Provenzano on direct, the deputy explained that, while approaching the
parked car, he saw three men in the car—one in the driver’s seat, another in the front-
passenger seat, and a third in the back seat of the car. Deputy Provenzano explained
the driver identified himself as Darrel Creel, and the man in the back seat identified
himself as Mason Shankle. The State never asked Deputy Provenzano to testify
about what Creel and Shankle told him during the investigation that led to Barlow’s
arrest.
On cross-examination, Barlow’s attorney asked Deputy Provenzano whether
the accounts Creel and Shankle gave him during his investigation “sort of
matched[?]” The deputy testified “No[,]” and he explained that Creel’s and
Shankle’s accounts differed on the subject of why they were at the house without
providing the jury with any additional detail.
After the deputy was cross-examined, the prosecutor asked the trial court to
allow the State to ask Deputy Provenzano what he learned from Shankle and Creel
6
that night. 6 Barlow objected to the request, arguing that questioning the deputy about
what Shankle and Creel told him would inject hearsay testimony into the case. The
trial court, however, ruled that Deputy Provenzano could testify about what he
learned from the two men to complete his testimony about whether their stories
matched.
On redirect, Deputy Provenzano testified that Shankle told him (1) they went
to the house after Creel and Barlow picked him up “because of a cell phone issue[,]”
(2) Barlow was in the car when Creel drove to the house, and (3) the only bag
Shankle had in the car was in the car’s back seat. Turning to Creel, Deputy
Provenzano testified that Creel told him (1) he went to the house “because of a car
issue[,]” (2) Barlow was with them when Creel took them to the house, and (3) Creel
told the deputy none of the bags in the car belonged to him. Thus, their respective
“stories” matched in some ways but not others.
Following closing argument, the jury found Barlow guilty. 7
6
At trial, the State argued that by questioning the deputy about Shankle’s and
Creel’s accounts, Barlow’s attorney opened the door to allowing further testimony
about what they said to the deputy under the rule of optional completeness. See Rule
107 of the Texas Rules of Evidence. Tex. R. Evid. 107 (“If a party introduces part
of an act, declaration, conversation, writing, or recorded statement, an adverse party
may inquire into any other part on the same subject.”).
7
See Tex. Penal Code Ann. § 46.04(a).
7
Analysis
Sufficiency Issue
In deciding whether sufficient evidence supports a verdict, we review all the
evidence in the light most favorable to the verdict to determine whether the evidence
allowed the jury to reasonably find Barlow guilty beyond a reasonable doubt. 8 In our
review, we consider all the evidence before the jury, whether or not that evidence
was properly admitted in the defendant’s trial. 9
In jury trials, the jury acts as the sole judge of the credibility and weight to
attach the testimony. 10 Juries are allowed to weigh any circumstantial evidence
admitted in the trial in the same way they weigh direct evidence when deciding
whether the defendant is guilty. 11 Thus, even though there may not be direct
evidence to establish the defendant committed the alleged offense, the cumulative
force of the incriminating circumstances may offer sufficient support for a jury’s
8
Jackson v. Virginia, 443 U.S. 307, 318 (1979).
9
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
10
Jackson, 443 U.S. at 316; Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017).
11
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
8
verdict, which allows the verdict to be affirmed on appeal.12 As the court reviewing
the evidence admitted in a trial, our role “is simply to ensure that the evidence
presented supports the jury’s verdict and that the State has presented a legally
sufficient case of the offense charged.”13
As a convicted felon, Barlow could not lawfully possess any firearms for a
period ending five years after completing his sentence under his 2013 conviction for
possession of a controlled substance.14 To prove Barlow violated the felon-in-
possession statute, the State had the burden to prove that (1) Barlow (2) after being
convicted of the 2013 felony offense of possession of a controlled substance (3)
intentionally or knowingly possessed (4) a firearm (5) before the fifth anniversary
of his release from confinement. 15 In cases involving possession of firearms, the
State can prove the defendant knowingly or intentionally possessed a firearm by
introducing evidence, either direct or circumstantial, to establish the defendant (1)
exercised care, control, or custody of the firearm, (2) was conscious of his
12
See Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
13
Queeman, 529 S.W.3d at 622.
14
Tex. Penal Code Ann. § 46.04(a).
15
See id.
9
connection with the firearm, and (3) possessed the firearm knowingly or
intentionally. 16 When, as in this case, the State’s evidence is circumstantial, the
evidence before the jury must establish that the defendant’s connection to the firearm
was more than fortuitous. 17
In Barlow’s case, the State was not required to establish Barlow had exclusive
possession of the shotgun.18 When, however, the evidence before the jury does not
establish the defendant had the firearm on his person or that he had exclusive
possession of the gun, the evidence in the trial must affirmatively link the defendant
to the gun. 19 These links must show the defendant voluntarily possessed the gun or
16
See id. § 1.07(a)(39); Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco
2014, no pet.); Bates, 155 S.W.3d at 216.
17
Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005),
overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 &
n.32 (Tex. Crim. App. 2015).
18
See Greer, 436 S.W.3d at 5 (citing Cude v. State, 716 S.W.2d 46, 47 (Tex.
Crim. App. 1986)).
19
See Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.]
2011) (“‘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.’”) (quoting
James v. State, 264 S.W.3d 215, 218-19 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d)), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).
10
that he “‘was conscious of his connection with the weapon and knew what it was.’”20
This rule, which is referred to as the “affirmative links” rule, is designed to protect
an innocent bystander from being convicted of possession based solely upon the fact
the evidence established the defendant was seen near another person’s gun. 21
To determine whether the evidence admitted in the trial satisfies the
affirmative links rule, courts look to the following non-exclusive factors:
• was the gun within the defendant’s plain view;
• did the defendant own the vehicle where the gun was found;
• was the defendant driving the vehicle where the gun was found;
• was the gun found near the defendant in a location where the defendant
could have easily accessed the weapon;
• was the gun found on the same side of the vehicle where the defendant
was sitting;
• was the gun found on the defendant;
• did the defendant attempt to flee;
• did the defendant’s conduct indicate his consciousness of guilt;
• did the defendant have any special connection or relationship to the
gun;
• was the place where the gun was found enclosed;
• did the occupants of the vehicle in which the gun was found give the
police conflicting statements about relevant matters; and
• did the defendant’s affirmative statements connect him to the gun.22
20
Stout v. State, 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012)
(quoting Jones, 338 S.W.3d at 742).
21
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (quoting
Poindexter, 153 S.W.3d at 405).
22
Stout, 426 S.W.3d at 218 (citing James, 264 S.W.3d at 219); see Bates, 155
S.W.3d at 216-17.
11
While courts use the above factors to determine whether the defendant and the gun
the State claims the defendant possessed are affirmatively linked, “‘the absence of
various links does not constitute evidence of innocence to be weighed against the
links present.’” 23 Instead, the logical force of the links must allow a reasonable jury
to conclude the defendant possessed the gun. 24
In his brief, Barlow argues that the evidence is insufficient to support the
jury’s verdict because no witnesses, including Deputy Provenzano, testified they saw
Barlow with the shotgun in his hands. According to Barlow, Deputy Provenzano’s
testimony merely shows that Barlow was aware that a shotgun was in Creel’s car.
Barlow argues the only evidence linking him to the gun consists of the evidence
showing he was aware that a shotgun was in Creel’s car and he was seen sitting near
the backpack that contained the gun. Barlow argues that without more, this evidence
is insufficient to satisfy the affirmative links rule. And Barlow suggests the jury
reached the wrong verdict when it chose to reject Cravens’ testimony that Creel’s
23
Swapsy v. State, 562 S.W.3d 161, 165 (Tex. App.—Texarkana 2018, no
pet.) (quoting Williams v. State, 313 S.W.3d 393, 398 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d)).
24
Swapsy, 562 S.W.3d at 165 (citing Evans v. State, 202 S.W.3d 158, 161-
62 (Tex. Crim. App. 2006)).
12
brother, not Barlow, is the person who possessed the shotgun Deputy Provenzano
removed from Creel’s car.
In this case, the evidence the jury considered linked Barlow to possessing the
gun in at least five ways. First, the shell Deputy Provenzano removed from the
shotgun he found in the car matched the gauge and color of the shotgun shell the
deputy found in Barlow’s pocket. Second, Deputy Provenzano’s testimony about
what Barlow told him allowed the jury to conclude that Barlow was aware that a
backpack, holding a shotgun, was inside the car. Third, the dashcam video, which
the jury viewed, shows Barlow sitting in the car’s front-passenger seat—a location
that would have allowed Barlow ready access to the gun. Fourth, the evidence shows
Barlow attempted to leave the scene after seeing a policeman approach Creel’s car,
evidence that allowed the jury to infer that Barlow attempted to flee to avoid being
questioned by police. Fifth, when Deputy Provenzano questioned Barlow, Barlow
appeared to the deputy to be “nervous” and “his hands were shaking,” evidence the
jury could have used to infer that Barlow exhibited signs consistent with a
consciousness of guilt.
Barlow largely ignores these links in his brief. Instead, Barlow points us to
Cravens’ testimony claiming the gun belonged to his brother, not to Barlow. In cases
involving questions of possession, however, the State is not required to prove the
13
defendant owned an object to prove the defendant possessed it.25 Also, as the
factfinder, the jury had the right to disbelieve Cravens’ testimony in deciding
whether his testimony weighed against the circumstantial evidence that linked
Barlow to the gun. 26
We conclude the evidence admitted in the trial allowed the jury to reasonably
find Barlow guilty beyond a reasonable doubt. 27 We overrule Barlow’s first issue.
Admission of Hearsay
In issue two, Barlow argues the trial court erred by allowing Deputy
Provenzano to testify to matters that were hearsay when it allowed the deputy to tell
the jury what he learned from Shankle and Creel.28 We use an abuse-of-discretion
standard to review an issue in an appeal that complains the trial court abused its
discretion by admitting a witness’s testimony. 29 To establish that an abuse of
25
See Tex. Pen. Code Ann. § 1.07(a)(39) (defining “possession” as “actual
care, custody, control, or management”); Smith v. State, 176 S.W.3d 907, 916 (Tex.
App.—Dallas 2005, pet. ref’d) (noting that “the State does not have to prove the
accused had exclusive possession of the firearm; joint possession is sufficient”).
26
See Jackson, 443 U.S. at 316; Queeman, 520 S.W.3d at 622.
27
See Jackson, 443 U.S. at 318.
28
Tex. R. Evid. 107.
14
discretion occurred, the defendant must establish the trial court’s ruling “was so
clearly wrong as to lie outside the zone within which reasonable people might
disagree.”30
Hearsay is an out-of-court statement which a party is offering to prove the
truth of the matter asserted by the statement.31 Generally, absent some exception to
the rule that prohibits trial courts from admitting hearsay, such testimony is
inadmissible.32 On appeal, the State argues the rule of optional completeness allowed
the trial court to admit Deputy Provenzano’s testimony. In contrast, Barlow argues
the rule of optional completeness does not apply because allowing the deputy an
opportunity to further explain his answer to Barlow’s question was unnecessary.
The rule of optional completeness is but one of many recognized exceptions
to the rule prohibiting trial courts from admitting hearsay. 33 The Court of Criminal
Appeals has explained that Rule 107 “is one of admissibility and permits the
29
See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); see also
Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
30
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
31
Tex. R. Evid. 801(d).
32
Id. 802.
33
Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011); Walters v.
State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Tex. R. Evid. 803.
15
introduction of otherwise inadmissible evidence when that evidence is necessary to
fully and fairly explain a matter ‘opened up’ by the adverse party.” 34 The rule exists
to allow trial courts “to reduce the possibility of the jury receiving a false impression
from hearing only a part of some act, conversation, or writing.” 35 Yet Rule 107 is
not triggered if the witness merely refers to a statement someone made to the witness
outside the courtroom. 36
In this case, the trial court could have believed that Deputy Provenzano’s
response (No) to the question posed by Barlow’s attorney—whether their stories sort
of matched—created the possibility the jury might have considered his response to
mean their “stories” did not match at all, an impression the trial court could have
reasonably viewed as false. By allowing the prosecutor to question Deputy
Provenzano further, the trial court allowed the deputy to fully explain what the men
told him so the jury was not left with the impression that the men gave the deputy
completely inconsistent accounts.
34
Walters, 247 S.W.3d at 218.
35
Id.
36
Pena, 353 S.W.3d at 814; Walters, 247 S.W.3d at 218.
16
The trial court did not abuse its discretion by allowing Deputy Provenzano to
fully explain what Shankle and Creel told him to avoid the possibility the jury would
be left with a false impression about what the men told the deputy. We conclude the
rule of optional completeness authorized the trial court to exercise its discretion to
admit the testimony Barlow complains about in his appeal. Barlow’s second issue is
overruled.
Conclusion
For the reasons we have explained, the trial court’s judgment is affirmed.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on April 16, 2019
Opinion Delivered August 21, 2019
Publish
Before Kreger, Horton and Johnson, JJ.
17