Bates v. State

JAMES, J.

dissenting.

Dissenting Opinion by Justice JAMES.

I agree the majority has correctly presented the law applicable to the offense of unlawful possession of a firearm by a felon. I also agree the majority has applied the appropriate standard of review. However, I disagree with the majority’s conclusion that the evidence is legally sufficient to support appellant’s conviction. Specifically, the evidence is insufficient for the trial court, sitting as the finder of fact, to find beyond a reasonable doubt that appellant had possession of the gun found in the minivan, an essential element of the offense charged. Accordingly, I respectfully dissent.

As the majority has posited, in cases charging unlawful possession of a firearm, we analyze the sufficiency of the evidence under the rules for determining the sufficiency of the evidence of unlawful possession of a controlled substance. See Young v. State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd). The State must prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Nguyen v. State, 54 S.W.3d 49, 52 (Tex.App.-Texarkana 2001, pet. ref'd). The State’s evidence, either direct or circumstantial, must establish the accused’s connection with the firearm was more than fortuitous by proving beyond a reasonable doubt the accused knowingly and intentionally possessed the weapon. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

Where, as in this case, there is no direct evidence the weapon was found on the accused’s person or was in his exclusive possession, the circumstantial evidence must affirmatively link the accused to the firearm. See id. The necessity of proving affirmative links between the accused and the firearm is mainly to establish his knowledge and intent to possess the weapon. See id. Factors which may establish affirmative links to the accused include whether: (1) the firearm was in plain view; (2) the accused was the owner of the vehicle in which the firearm was found; (3) the accused was the driver of the vehicle in which the firearm was found; (4) the accused was in proximity to and had access to the firearm; (5) the firearm was found *220on the same side of the vehicle as where the accused.was sitting; (6) the firearm was found on the accused’s person; (7) the accused attempted to flee; (8) conduct of the accused indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (9) the accused had a special connection or relationship to the firearm; (10) the place where the firearm was found was enclosed; (11) occupants of the automobile gave conflicting statements about relevant matters; and (12) affirmative statements connect the accused to the firearm, including incriminating statements made by the accused when arrested. See Dixon v. State, 918 S.W.2d 678, 681 (Tex.App.-Beaumont 1996, no pet.). “Affirmative link” is only a shorthand expression of what the State must prove to establish that a person possessed some kind of contraband “knowingly or intentionally.” See Brovm, 911 S.W.2d at 747. The evidence must affirmatively link the defendant to the thing he is alleged to have possessed. Id.

In this case the evidence is undisputed the firearm was found in a compartment under the passenger seat of a minivan owned by Hester. The arresting officer testified appellant was seated in the driver’s seat and was the only occupant of the vehicle. Appellant did not attempt to flee when the officer drove up. Appellant declined to give the officer permission to search the vehicle saying it was not his, but he gave the officer Hester’s phone number to call for permission. The firearm was not examined for fingerprints of appellant or others. Appellant told the officer the gun was not his and he did not know it was in the minivan. Based on these facts, I would conclude the State failed to adduce any evidence of affirmative links set forth in at least nine of the twelve affirmative links the majority cites from Dixon. See id. However, I recognize the number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 520 (Tex.App.-Tyler 1995, pet. ref'd). Thus an analysis of the evidence relevant to these three remaining factors is required.

The State presented evidence the automobile appellant was driving was owned by Hester. Appellant had driven the car less than two hours when he was arrested. According to the arresting officers, Lisa Watts reported appellant was harassing her with threats and was coming to her residence. She .told the dispatcher appellant was five minutes from her and had a gun. Within fifteen minutes of Watts’s call to the dispatcher, the arresting officer arrived at Watts’s house and saw appellant seated in the driver’s seat of Hester’s' parked minivan. This testimony indicates appellant had been in Hester’s automobile for less than half an hour when he came under surveillance of the police. This short period of time of being the driver of the vehicle, no more than the fifteen minutes after Watts’s call, implies appellant had no more than limited or temporary control of the minivan. I would conclude this factor does not provide a strong affirmative link between appellant and the' firearm.

The police searched the minivan, and the firearm was found in a compartment under the passenger seat. The officer testified appellant, by “lunging,” could have reached the weapon in the “slightly opened” compartment under the passenger seat from his position in the driver’s seat. Again, this evidence fails to provide a strong affirmative link based on appellant’s proximity to and the accessibility of the firearm.

*221The arresting officer testified appellant declined his request to consent to a search of the minivan, and in the officer’s opinion this indicated appellant had something in the vehicle he wanted to conceal. However, appellant explained he could not give consent because the automobile belonged to someone else. He gave the officer Hester’s phone number and said to call her for permission. To the extent the trial court sitting as the fact finder may have considered this evidence to be conduct indicating a consciousness of guilt, I conclude it is, at best, a very weak affirmative link, a conclusion shared somewhat by the majority.

In reviewing a challenge to the legal sufficiency of the evidence, we must review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). The burden of proof is on the prosecution to prove each element of the offense beyond a reasonable doubt. Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). As I have stated at the outset, the State was required to prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude, 716 S.W.2d at 47; Nguyen, 54 S.W.3d at 52.

After examining the record for any evidence of an affirmative link tending to prove that the appellant was actually aware of his possession of a firearm, I conclude the State’s evidence is so weak a rational trier of fact could not have found the essential elements of the charged offense beyond a reasonable doubt. Confidence in the trial court’s determination of appellant’s guilt is undermined because the evidence is so weak it fails to prove beyond a reasonable doubt that the appellant knowingly or intentionally possessed the firearm and fails to overcome the presumption of the appellant’s innocence. Accordingly, the evidence is legally insufficient and the judgment should be reversed. See Brown, 911 S.W.2d at 746.

The majority asserts appellant must have placed the gun in the minivan because “(t)he only other people who could have put the gun in the compartment were Hester and Parmon.” Hester denied all knowledge of the gun and said Parmon had not used the car in the two weeks prior to appellant’s arrest. The record, however, does not support the majority’s conclusion that Parmon or someone else could not have put the gun in the compartment. There is no evidence Hester did not allow anyone other than the appellant to use her minivan before the time appellant was arrested.

The majority concludes that the trial court could have rationally determined Hester would have seen the gun if it had been in the compartment before appellant drove it. This, however, is not supported by any evidence in the record. There is no evidence Hester had opened the compartment in the intervening two-week period following Parmon’s use of the minivan. Accordingly, I conclude this is no evidence the appellant knowingly or intentionally possessed the firearm.

The majority details the evidence of Watts’s 911 call reporting the appellant was on his way to her house and had a gun. From this the majority concludes the evidence reasonably shows appellant had a gun. I respectfully disagree. This evidence would be supportive of showing the officer had a right to search appellant before arresting him, but it is not probative of appellant’s knowingly and intention*222ally possessing the firearm. Indeed, this evidence fails to supply any affirmative link to the appellant.

The Fourteenth Amendment to the Constitution protects an accused’s right to a fair trial; the presumption of innocence is a basic component of that right. See U.S. Const, amend. XIV; Tex.Code CRiM. Peoc. Ann. Art. 38.03 (Vernon Supp.2004). Federal due process holds that a conviction is unconstitutional unless after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318, 99 S.Ct. 2781; Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992).

In summary, I would conclude the evidence of appellant’s connection to the firearm is so weak as to show no more than appellant had a fortuitous relation to the firearm. As such, the State failed to prove the essential elements of appellant’s voluntary possession of the firearm beyond a reasonable doubt. To conclude otherwise is to allow conviction for unlawful possession of a firearm solely on evidence the defendant was driving an automobile in which a firearm was found under the passenger seat. Such a conclusion vitiates the constitutionally protected presumption of innocence every defendant enjoys by allowing the State to prove possession by sparse evidence that falls far short of overcoming that presumption.

Because I would reverse and enter judgment of acquittal, I respectfully dissent.