Lawrence Iseral Hubert v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-21-00168-CR
NO. 09-21-00169-CR
NO. 09-21-00170-CR
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LAWRENCE ISERAL HUBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause Nos. CR34877, CR34892CT1 and CR34892CT2
__________________________________________________________________

MEMORANDUM OPINION

A jury convicted appellant Lawrence Iseral Hubert of evading arrest or

detention with a previous conviction and of two charges of unlawful possession of a

firearm by a felon. In four issues on appeal, Hubert challenges the sufficiency of the

evidence, admission of evidence, and the trial court’s decision to grant two of the

State’s challenges for cause. We affirm the trial court’s judgments.

1
 THE EVIDENCE

K.A.1 testified that she called 9-1-1 because her neighbor, Hubert, pointed a

gun at her and her friends while they were sitting in her grandmother’s backyard.

K.A. described the gun as black, automatic and bigger than a handgun. K.A. testified

that the gun she saw Hubert holding matched the photographs of the guns depicted

in State’s Exhibits 9 and 13, which was later identified as the Kel-Tec SUB2000 9-

millimeter carbine.

Lieutenant Michael Shane Burleigh of the Dayton Police Department testified

that he was called out to assist with a possible barricaded subject, and when he

arrived, patrol officers had a perimeter set up around Hubert’s house and were

searching for Hubert. Burleigh explained that the call indicated that weapons may

have been involved. Burleigh testified that Hubert’s car was at his house, but they

did not locate Hubert. Burleigh explained that a warrant was issued for Hubert’s

arrest and Sergeant Brian Chowns was the affiant, and when the police located

Hubert the next day, Hubert ran. Burleigh testified that when he arrived at the scene,

Hubert had already been arrested based on the warrant, and Burleigh located a

Springfield Armory XD black handgun in the grass a couple hundred yards from

1
To protect the privacy of the State’s witnesses who testified at Hubert’s trial,
we identify them by their initials. See Tex. Const. art. I, § 30 (granting crime victims
“the right to be treated with fairness and with respect for the victim’s dignity and
privacy throughout the criminal justice process”).
2
Hubert’s house. Burleigh also recovered a white cloth bag that appeared to be a

pillowcase with a Kel-Tec SUB2000 9-millimieter carbine which “folds out into a

larger legal size rifle.” According to Burleigh, Hubert did not live on the plot of land

where he recovered the Springfield Armory XD handgun and the Kel-Tec 9-

millimeter.

Chowns of the Dayton Police Department explained that he was called out

due to a suspicious subject that he determined was Hubert, and after receiving

information from K.A. and two others, Chowns started an investigation for a felon

in possession of a firearm. Chowns testified that he applied to get an arrest warrant

for Hubert and that the affidavit contains his signature, and based on the arrest

warrant, officers arrested Hubert the next day with firearms in his possession.

Hubert’s counsel complained that Hubert’s arrest was unlawful, and the

warrant was invalid because Chowns’s affidavit supporting the warrant was

insufficient because it failed to provide the magistrate with information regarding

the witnesses’ credibility and reliability. Hubert’s counsel argued the evidence

obtained due to Hubert’s arrest is inadmissible.

The trial court admitted the Warrant of Arrest for Hubert for the offense of

possession of a firearm by a felon and a copy of Chowns’s probable cause affidavit.

In his affidavit, Chowns averred that the complainant contacted the police after

Hubert pointed a weapon at the complainant, and four witnesses to the incident all

3
advised they observed Hubert with an assault style rifle and a pistol. Chowns further

averred that Hubert’s criminal history revealed felony convictions for aggravated

assault against a public servant, evading arrest or detention with a vehicle, and

possession of a controlled substance. The trial court found that the affidavit was

sufficient because it was based on four witnesses and the complainant’s 9-1-1 call.

Trooper Christopher Richmond of the Texas Department of Public Safety

testified that when he assisted with the arrest warrant, he observed Hubert carrying

a white bag, which appeared to be a pillowcase. Richmond testified that when Hubert

spotted him in his marked patrol unit, Hubert changed directions and ran. The trial

court admitted a video taken from Richmond’s body camera showing Richmond

running after Hubert and the recovery of the white bag Hubert was carrying.

Richmond testified that the white bag contained a firearm that was “some type of

machine rifle mechanism.” Richmond explained they also recovered a Springfield

XD 40-caliber handgun at the scene. The video shows that the Springfield XD 40-

caliber handgun was found in plain view in the grass a few feet from the white

pillowcase. The video also shows another Trooper stating that Hubert had the

Springfield XD 40-caliber handgun in his hand when he was running.

Investigator Ivan Pearce of the Liberty County District Attorney’s Office

testified that he is an expert in examining inked fingerprints. Pearce testified that he

obtained a fingerprint card from Hubert, compared the inked fingerprints on the card

4
to the fingerprints on State’s Exhibit 16, a judgment of conviction for the state jail

felony offense of possession of a controlled substance, and determined Hubert’s

fingerprints matched the fingerprints on State’s Exhibit 16. Pearce also testified that

Hubert’s fingerprints matched the fingerprints on State’s Exhibit 18, a judgment of

conviction for evading arrest or detention with a vehicle, a state jail felony. Pearce

explained other identifying information linked Hubert to State’s Exhibits 16 and 18.

Sergeant Eric Ibarra of the Dayton Police Department testified that his dash

camera on his marked patrol vehicle captured his attempt to apprehend Hubert

because there was a warrant for his arrest. Ibarra explained that he observed Hubert

carrying either a towel or pillowcase. Ibarra testified that he was in full uniform and

had activated his lights and sirens when Hubert ran, and after he and other agencies

searched for over an hour, Hubert was arrested. Ibarra testified that he collected

evidence at the scene of Hubert’s arrest, which included the white pillowcase Ibarra

observed in Hubert’s hand, magazines, the Springfield Armory XD 40-caliber

handgun, the Kel-Tec 9-millimeter, ammunition, and marijuana. Ibarra also

explained that Hubert was not arrested at his house, and Hubert did not live at the

location where he was arrested.

At the close of the State’s evidence, Hubert’s counsel reurged the trial court

to find that Chowns’s affidavit supporting the warrant was insufficient and to instruct

the jury to disregard all evidence obtained due to the warrant. The trial court

5
reiterated that it found the arrest warrant sufficient, and the trial court noted that prior

to being arrested on the warrant, Hubert committed the three felony offenses at issue

in the officers’ presence before any arrest or detention was effectuated. The trial

court denied Hubert’s motion for a directed verdict in all three cases.

The jury found Hubert guilty of evading arrest or detention with a previous

conviction and of two charges of unlawful possession of a firearm by a felon. The

trial court conducted a punishment hearing, during which the jury heard evidence of

Hubert’s prior felony convictions for aggravated assault on a public servant,

aggravated robbery, and possession of a controlled substance. In trial cause number

CR34877, the jury found the habitual paragraph in the indictment to be true and

assessed punishment at two years of confinement for evading arrest or detention with

a previous conviction. In trial cause numbers CR34892CT1 and CR34892CT2, the

jury found enhancement allegations A and B and habitual allegation C to be true and

assessed punishment at thirty years of confinement for each count of unlawful

possession of a firearm by a felon.

ANALYSIS

ADMISSION OF EVIDENCE

In issue one, Hubert complains that the trial court erred by admitting the

firearms seized upon his arrest because Chowns’s affidavit supporting the arrest

6
warrant was insufficient to establish probable cause.2 According to Hubert,

Chowns’s affidavit was insufficient because it failed to name the informants or

establish their credibility and the reliability of their information. Hubert argues

Chowns’s affidavit only provided unsupported, conclusory statements that failed to

provide the magistrate with sufficient information to support an independent

judgment that probable cause existed and there was no basis established at trial for

a lawful warrantless arrest.

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). A

trial court abuses its discretion when its decision lies “outside the zone of reasonable

disagreement.” See id. (quoting Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.

App. 2005)). “An arrest warrant affidavit must provide the magistrate with

‘sufficient information to support an independent determination that probable cause

exists to believe that probable cause exists for the warrant.’” McFarland v. State,

928 S.W.2d 482, 509 (Tex. Crim. App. 1996), abrogated on other grounds by

Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998); see also State v.

2
Ordinarily, we would address issues three and four first because, if sustained,
they would result in rendition of a judgment of acquittal. See Price v. State, 502
S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Tex. R.
App. P. 47.1. However, we will address issue one first because Hubert argues that
we must not consider evidence of the firearms seized upon his arrest because
Chowns’s affidavit supporting the arrest warrant was insufficient to establish
probable cause and there was no independent basis established for his arrest.
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Duarte, 389 S.W.3d 349, 353, 360-61 (Tex. Crim. App. 2012). The test is whether

a reasonable reading by the magistrate would lead to the conclusion that the four

corners of the affidavit provide a “substantial basis” for issuing the warrant. Duarte,

389 S.W.3d at 354 (citation omitted); Valadez v. State, 476 S.W.3d 661, 670 (Tex.

App.—San Antonio 2015, pet. ref’d). We will uphold the magistrate’s probable

cause determination so long as the magistrate had a substantial basis for concluding

that probable cause existed. Valadez, 476 S.W.3d at 670. We analyze the affidavit

with common sense, recognizing that the magistrate may draw reasonable inferences

from the facts and circumstances contained within the four corners of the affidavit.

See id.

Information in an affidavit supporting an arrest may be based on either the

affiant’s personal knowledge or on hearsay information. Id. The reliability of the

affiant and his sources are part of the “totality of the circumstances” that the

magistrate should evaluate in determining probable cause. State v. Coker, 406

S.W.3d 392, 395–96 (Tex. App.—Dallas 2013, pet. ref’d) (citations omitted).

However, where an eyewitness to the offense is the direct source of the information

conveyed to the magistrate via a police officer, corroborative facts and other indicia

of reliability are unnecessary. White v. State, 746 S.W.2d 775, 778 (Tex. App.—

Dallas 1985, no pet.). The affidavit is sufficient if the information given by an

unnamed eyewitness adequately suggests direct knowledge on his or her part. See

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Belton v. State, 900 S.W.2d 886, 894 (Tex. App.—El Paso 1995, pet. ref’d); see also

Valadez, 476 S.W.3d at 670.

Hubert argues that Chowns’s affidavit was conclusory and insufficient

because it failed to name the informants or establish their credibility and the

reliability of their information. In his affidavit, Chowns averred that the complainant

called the police to report that Hubert was walking around with a firearm that he

pointed in the complainant’s direction and that Hubert had commented that he was

going to kill someone. Chowns further averred that there were four witnesses to the

incident who observed Hubert with an assault style rifle and pistol. In viewing the

totality of the circumstances in a common sense and realistic manner, we conclude

the magistrate had a substantial basis for concluding probable cause existed to issue

the arrest warrant against Hubert. See Duarte, 389 S.W.3d at 354. We further

conclude that Chowns’s affidavit is sufficient and did not require corroborative facts

and other indicia of reliability because the unnamed complainant and other witnesses

who provided the information were eyewitnesses who had direct knowledge of the

incident. See Valadez, 476 S.W.3d at 670; Belton, 900 S.W.2d at 894; White, 746

S.W.2d at 778. Accordingly, Hubert’s complaint that the trial court erred by

admitting the firearms seized upon his arrest because Chowns’s affidavit was

insufficient to establish probable cause is without merit. We overrule issue one.

9
 SUFFICIENCY OF THE EVIDENCE

In issue three, Hubert argues that the evidence is insufficient to support his

conviction for unlawful possession of a firearm by a felon because the evidence did

not establish that he possessed the Springfield Armory XD 40-caliber handgun. In

issue four, Hubert argues that the evidence is insufficient to support his conviction

for evading arrest or detention with a previous conviction because the State failed to

establish that Ibarra had a lawful basis to arrest or detain him.

In evaluating the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). The jury is the ultimate authority on the credibility of the

witnesses and the weight to be given to their testimony. Penegraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not

sit as a thirteenth juror and substitute its judgment for that of the factfinder by

reevaluating the weight and credibility of the evidence. Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. A reviewing

court must give full deference to the jury’s responsibility to fairly resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

10
basic facts to ultimate facts. Hooper, 214 S.W.3d at 13 (citation omitted). If the

record contains conflicting inferences, we must presume the jury resolved such facts

in favor of the verdict and defer to that resolution. See Brooks, 323 S.W.3d at 899

n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all evidence when viewed in the light most

favorable to the verdict.” Hooper, 214 S.W.3d at 16-17. We treat direct and

circumstantial evidence equally. Clayton, 235 S.W.3d at 778.

To establish unlawful possession of a firearm by a felon, the State must prove

that a person who has been convicted of a felony possessed a firearm after (1)

conviction and before the fifth anniversary of his release from confinement or

supervision following conviction of the felony, whichever is later; or (2) the period

described by Subdivision (1), at any location other than the premises at which the

person lives. Tex. Penal Code Ann. § 46.04(a). A separate statute defines

“[p]ossession.” See id. § 1.07(a)(39). The State can prove the defendant knowingly

or intentionally possessed a firearm by introducing either direct or circumstantial

evidence to establish the defendant (1) exercised care, custody, or control of the

firearm, (2) was conscious of his connection with the firearm, and (3) possessed the

firearm knowingly or intentionally. See id.; Greer v. State, 436 S.W.3d 1, 5 (Tex.

App.—Waco 2014, no pet.). While the State can meet its burden with direct or

11
circumstantial evidence, the evidence before the jury must establish the defendant’s

connection to the firearm was more than fortuitous. See Greer, 436 S.W.3d at 5

(citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)).

When 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

trial must affirmatively link the defendant to the gun. See Barlow v. State, 586

S.W.3d 17, 23 (Tex. App.—Beaumont 2019, pet. ref’d); Jones v. State, 338 S.W.3d

725, 742 (Tex. App.—Houston [1st Dist.] 2011 (op. on reh’g), aff’d, 364 S.W.3d

854 (Tex. Crim. App. 2012). The affirmative links must show either that the

defendant voluntarily possessed the gun or that he “‘was conscious of his connection

with the weapon and knew what it was.’” Stout v. State, 426 S.W.3d 214, 218 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (quoting Jones, 338 S.W.3d at 742). The

“affirmative links” requirement is designed to protect an innocent bystander from

being convicted based solely upon the fact the evidence was established the

defendant was seen near another person’s gun. Blackman v. State, 350 S.W.3d 588,

594 (Tex. Crim. App. 2011) (quoting Poindexter v. State, 153 S.W.3d 402, 405-06

(Tex. Crim. App. 2005)).

To determine whether the evidence admitted in the trial sufficiently

established affirmative links between the defendant and the firearm, courts look to

the following non-exclusive factors: (1) was the firearm in plain view; (2) was the

12
firearm found near the defendant in a location where the defendant could have easily

accessed the weapon; (3) was the firearm found on the defendant; (4) did the

defendant attempt to flee; (5) did the defendant’s conduct indicate his consciousness

of guilt, including the extreme nervousness or furtive gestures; (6) did the defendant

have any special relationship or connection to the firearm; (7) was the place where

the firearm was found enclosed; and (8) did the defendant’s affirmative statements

connect him to the firearm, including incriminating statements made by the

defendant when arrested. Stout, 426 S.W.3d at 218 (citing James v. State, 264

S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)). While courts

use the above non-exclusive factors to examine whether the evidence affirmatively

links the defendant to the firearm, “[t]he absence of various links” is not dispositive

but may be weighed with other links that are present. 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)).

The evidence before the jury included several affirmative links connecting

Hubert to possession of the Springfield Armory XD 40-caliber handgun. Richmond

testified that he observed Hubert carrying a white pillowcase that contained a firearm

and that a Springfield XD 40-caliber handgun was recovered from the scene. The

video from Richmond’s body camera shows that Hubert was arrested near the

Springfield XD 40-caliber handgun, which was found in plain view in the grass a

13
few feet from the white pillowcase. The video also shows another Trooper stating

that Hubert had the Springfield XD 40-caliber handgun in his hand when he was

running. Ibarra testified that he observed Hubert with a white pillowcase in his arm

and that he collected the Springfield Armory XD 40-caliber handgun at the scene of

Hubert’s arrest.

We conclude that Hubert’s connection to the Springfield Armory XD 40-

caliber handgun was more than fortuitous and that the logical force of the links

established by the evidence submitted at trial would allow a reasonable jury to

conclude that Hubert possessed the Springfield Armory XD 40-caliber handgun. See

Greer, 436 S.W.3d at 5; Graves v. State, No. 01-19-00868-CR, No. 01-19-00869-

CR, 2020 WL 7349101, at *3 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, pet.

ref’d) (mem. op., not designated for publication). Reviewing all the evidence in the

light most favorable to the verdict, we conclude that a rational factfinder could have

found the elements of unlawful possession of a firearm by a felon beyond a

reasonable doubt. See Jackson, 443 U.S. at 319; Gear v. State, 340 S.W.3d 743, 746

(Tex. Crim. App. 2011); Graves, 2020 WL 7349101, at *3; see also Tex. Penal Code

Ann. § 46.04(a). We overrule issue three.

Under section 38.04 of the Texas Penal Code, a person commits the offense

of evading arrest or detention if he intentionally flees from a person he knows is a

peace officer attempting to lawfully arrest or detain him. Tex. Penal Code Ann. §

14
38.04(a). The indictment alleges that Hubert fled from Sergeant Ibarra, who was a

peace officer who was lawfully attempting to arrest or detain him, and that prior to

the commission of the charged offense, Hubert was convicted of evading arrest

under section 38.04. Hubert argues the evidence is insufficient to support his

conviction for evading arrest or detention with a previous conviction because the

State failed to establish that Ibarra had a lawful basis to arrest or detain him.

Having already determined that Chowns’s affidavit was sufficient to establish

probable cause to issue the arrest warrant against Hubert, we conclude that Ibarra

had a lawful basis to arrest or detain Hubert. Additionally, Ibarra testified that his

dash camera on his marked patrol vehicle captured his attempt to apprehend Hubert

because there was a warrant for his arrest. Ibarra explained that he was in full

uniform and had activated his lights and sirens when Hubert ran. Ibarra’s dash cam

video shows Hubert running down the road and into a wooded area carrying a white

bag and Ibarra driving into a grassy area in pursuit of Hubert. Reviewing all the

evidence in the light most favorable to the verdict, we conclude that a rational

factfinder could have found the elements of the state jail felony offense of evading

arrest or detention with a previous conviction beyond a reasonable doubt. See

Jackson, 443 U.S. at 319; Gear, 340 S.W.3d at 746; Tex. Penal Code Ann. §

38.04(a). Accordingly, we overrule issue four.

15
 JURY CHALLENGES FOR CAUSE

In issue two, Hubert complains the trial court erred by granting two of the

State’s challenges for cause and dismissing the venirepersons because they could not

consider the full range of punishment. According to Hubert, both venirepersons

confirmed that they could consider the full range of punishment after being

questioned further.

We review a complaint about the trial court’s granting of the State’s

challenges for cause for an abuse of discretion. See Tracy v. State, 597 S.W.3d 502,

512 (Tex. Crim. App. 2020). Since the trial court is in the best position to evaluate a

potential juror’s demeanor and responses, we give consideration deference to the

trial court’s ruling on a challenge for cause. Hudson v. State, 620 S.W.3d 726, 731

(Tex. Crim. App. 2021). “A challenge for cause is an objection made to a particular

juror, alleging some fact which renders the juror incapable or unfit to serve on the

jury.” Tex. Code Crim. Proc. Ann. art. 35.16(a). “[T]he proponent of a challenge for

cause has the burden of establishing that the challenge is proper.” Gardner v. State,

306 S.W.3d 274, 295 (Tex. Crim. App. 2009). The State may make a challenge for

cause that the juror has a “bias or prejudice against any phase of the law upon which

the State is entitled to rely for conviction or punishment.” Tex. Code Crim. Proc.

Ann. art. 35.16(b)(3); see Pierce v. State, 696 S.W.2d 899, 901-03 (Tex. Crim. App.

1985). “Both the State and the defense are entitled to jurors who can consider the

16
entire range of punishment for the particular statutory offense–i.e., from the

maximum to the minimum and all points in between.” Cardenas v. State, 325 S.W.3d

179, 184 (Tex. Crim. App. 2010). “[U]nless there is further clarification or

vacillation by the juror, the trial judge must grant a challenge for cause if the juror

states that he cannot consider the full range of punishment.” Id. at 185.

During voir dire, the prosecutor asked the panel if anyone was unable to

consider the full range of punishment of 25 to 99 or life for the crime of unlawful

possession of a firearm by a felon if the State shows that the defendant has two or

more prior convictions. The record reflects that among others, venirepersons 18 and

28 indicated they could not consider the full range of punishment of 25 to 99 or life.

The State challenged venirepersons 18 and 28 for cause, and the trial court granted

the State’s challenges. Although Hubert argues that venirepersons 18 and 28

confirmed that they could consider the full range of punishment after being

questioned further, the record does not support Hubert’s argument. Rather, the

record shows that venireperson 18 told the trial court that he could not follow the

full range of punishment if the individual only had minor felonies but still fell under

the habitual status. The record further shows that venireperson 28 also told the trial

court that she could not consider the full range of punishment if the individual had

minor felonies because it was “too harsh a punishment.” We conclude the trial court

did not abuse its discretion by granting the State’s challenges for cause. See Tex.

17
Code Crim. Proc. Ann. art. 35.16(a), (b)(3); Tracy, 597 S.W.3d at 512; Cardenas,

325 S.W.3d at 184-85; Gardner, 306 S.W.3d at 295. We overrule issue two. Having

overruled each of Hubert’s issues, we affirm the trial court’s judgments.

AFFIRMED.

_________________________
W. SCOTT GOLEMON
Chief Justice

Submitted on April 8, 2022
Opinion Delivered April 27, 2022
Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.

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