IN THE TENTH COURT OF APPEALS
No. 10-19-00082-CR
CHARLES WAYNE NELSON, Appellant v.
THE STATE OF TEXAS, Appellee
From the 361st District Court Brazos County, Texas Trial Court No. 17-02435-CRF-361
MEMORANDUM OPINION
In six issues, appellant, Charles Wayne Nelson, challenges his convictions for
aggravated assault of a public servant and unlawful possession of a firearm by a felon.
See TEX. PENAL CODE ANN. §§ 22.02(b)(2)(B) (West 2019); see also id. § 46.04(a) (West Supp.
2019). Because we overrule all of Nelson’s issues on appeal, we affirm. I. SUFFICIENCY OF THE EVIDENCE
In his first three issues, Nelson contends that the evidence is insufficient to support
his convictions for aggravated assault of a public servant and unlawful possession of a
firearm by a felon. Specifically, in issues one and two, Nelson argues that the State failed
to prove beyond a reasonable doubt that he was the assailant. In issue three, Nelson
challenges the sufficiency of the evidence supporting the jury’s deadly-weapon finding.
A. Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a “divide and conquer” strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Nelson v. State Page 2 This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
B. Aggravated Assault of a Public Servant
A person commits an aggravated assault on a public servant if the person
intentionally or knowingly threatens another with imminent bodily injury, uses or
exhibits a deadly weapon during the commission of the assault, and the assault is
committed against a public servant lawfully discharging an official duty. TEX. PENAL
CODE ANN. §§ 22.01(a)(2) (West Supp. 2019), 22.02(a)(2), (b)(2)(B). On appeal, Nelson
challenges the identity element of the charged offense, arguing that the State failed to
prove beyond a reasonable doubt that he was the shooter.
Nelson v. State Page 3 The State is required to prove beyond a reasonable doubt that the accused is the
person who committed the crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex.
App.—Austin 2000, pet. ref’d) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim.
App. 1984); Rice v. State, 901 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d)).
Identity may be proven by direct or circumstantial evidence. Id. (citing Earls v. State, 707
S.W.2d 82, 85 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—
Fort Worth 1999, pet. ref’d); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986,
no pet.)). “In fact, identity may be proven by inferences.” Id. (citing United States v.
Quimby, 636 F.2d 86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—
Beaumont 2001, no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San
Antonio 1995, pet. ref’d) (explaining that the jury may use common sense and apply
common knowledge, observation, and experience gained in ordinary affairs of life when
giving effect to inferences that may reasonably be drawn from the evidence).
At around 12:15 a.m. on March 21, 2017, Texas Department of Public Safety
Trooper Josh Ferguson conducted a traffic stop of a vehicle driven by Michael Lott
because of an obscured license plate. As Trooper Ferguson walked to the driver’s side of
the vehicle, he saw Nelson leaning back in the passenger’s seat, looking at Trooper
Ferguson through an open driver’s-side rear window. Trooper Ferguson described
Nelson as looking at him with “what we call a thousand yard stare which means like
looking through me or like a hard concentration about something. And he’s not moving
Nelson v. State Page 4 at all. I recognize like a tear drop tattoo right here (indicating).” Nelson never broke eye
contact with Trooper Ferguson. Lott testified that while he was talking to Trooper
Ferguson, Nelson pulled out a gun and leaned the seat back with the gun “laid . . . up on
his chest” pointed toward the passenger-side window.
During the traffic stop, Lott explained to Trooper Ferguson that the front driver’s
window was broken and could not be rolled down. Trooper Ferguson then walked
around the vehicle to the passenger side and stood at the “B pillar”—where the front door
and rear doors meet. Trooper Ferguson recounted that the passenger-side front window
had not been rolled down, and he denied being able to see inside the vehicle because of
the dark-tinted window.
Shortly thereafter, a gunshot came from inside the car. Trooper Ferguson “got hit
in the face with glass. It was a real hard percussion and I had a sharp pain in my chest.”
Trooper Ferguson recalled that the gunshot was coming “[r]ight at my head, and he
observed a large hole near the B pillar on the top of the passenger-side window. He
believed that “the muzzle was right at the window to make that big of a hole” and that
the gun was shot at an upward angle. Trooper Ferguson testified that it was clear that
the shooter was trying to kill him. There was no doubt in Trooper Ferguson’s mind that
Nelson, not Lott, was the shooter. Indeed, Trooper Ferguson identified Nelson in open
court as the shooter.
Nelson v. State Page 5 In addition to the foregoing, the record reflects that the driver’s front door opened
and Lott exited the vehicle just as another shot was fired. Nelson fled driving Lott’s
vehicle. See Figueroa v. State, 250 S.W.3d 490, 503 (Tex. App.—Austin 2008, pet. ref’d)
(noting that evidence of attempting to flee is admissible and may indicate a consciousness
of guilt). Lott remained on the ground as Nelson drove his vehicle away from the scene.
After Nelson fled in the vehicle, the gun was found on the pavement where Lott was
laying, which was just outside where the driver’s door of the car had been before Nelson
fled in it. Nelson was eventually apprehended in a nearby marsh.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that a rational juror could have concluded that Nelson used a deadly weapon—a
firearm—to shoot at Trooper Ferguson, which caused Trooper Ferguson to fear for his
life; as such, we hold that the evidence is sufficient to support Nelson’s conviction for
aggravated assault of a public servant. See TEX. PENAL CODE ANN. §§ 22.01(a)(2),
22.02(a)(2), (b)(2)(B); see also Zuniga, 551 S.W.3d at 732-33.
C. Unlawful Possession of a Firearm by a Felon & The Jury’s Deadly-Weapon Finding
A person who has been convicted of a felony commits the offense of unlawful
possession of a firearm by a felon if he possesses a firearm after the fifth anniversary of
the person’s release from confinement following a conviction of the felony “at a place
other than the premises at which the person lives.” TEX. PENAL CODE ANN. § 46.04(a)(2).
To support a conviction for possession of a firearm, the State must prove: (1) that the Nelson v. State Page 6 accused exercised actual care, control, or custody of the firearm; (2) that the accused was
conscious of his connection to it; and (3) that he possessed the firearm knowingly and
intentionally. Bollinger v. State, 224 S.W.3d 768, 773 (Tex. App.—Eastland 2007, pet. ref’d).
In determining whether a person is linked to a firearm, we can consider a number of
factors, including 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. See Smith v. State, 176
S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d); 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.
At trial, Nelson stipulated that he was a convicted felon. Lott testified that he
drove Nelson around a lot in his vehicle. A couple of days before the shooting, Lott took
Nelson to the East Travel Motel so that Nelson could meet someone. Later that day, Lott
returned to the motel and picked up Nelson and another person named Tyrone Greeno.
According to Lott, Greeno gave Nelson a gun, and Nelson was supposed to pay Greeno
$200. There was also talk that Nelson would pay Greeno in “tunechi,” otherwise known
Nelson v. State Page 7 as high-grade marihuana or K2. Despite Nelson not having any cash, Greeno let him
keep the gun, which was later identified as having been stolen from a house that Greeno
burglarized.
Lott recounted that Nelson would take the firearm with him when he got out of
Lott’s vehicle and then put the gun in the glove box when he got back in the vehicle. Lott
identified this gun as the gun that Nelson: (1) pulled out when stopped by Trooper
Ferguson; (2) laid on his chest pointed at the passenger-side window; and (3) used in the
shooting. Greeno also testified that he gave Nelson the firearm with hopes of getting
some money or marihuana for it. Furthermore, Lott stated that Nelson threw the gun out
of the vehicle when Nelson fled the crime scene in Lott’s vehicle.
Viewing the evidence in the light most favorable to the jury’s verdict, there was
ample evidence demonstrating that Nelson’s connection to the gun was not merely
fortuitous, and the jury could reasonably infer that Nelson exercised care, custody,
control, or management over the gun voluntarily. See Poindexter v. State, 153 S.W.3d 402,
406 (Tex. Crim. App. 2005) (noting that 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 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, word, and conduct of the accused). Moreover, based on the logical force of the
factors articulated in Smith and Dixon, we conclude that the elements of the offense—
Nelson v. State Page 8 unlawful possession of a firearm by a felon—have been established. See Smith, 176 S.W.3d
at 916; Dixon, 918 S.W.2d at 681. Accordingly, we conclude that the record contains
sufficient evidence to support Nelson’s conviction for unlawful possession of a firearm
by a felon. See TEX. PENAL CODE ANN. § 46.04(a)(2); see also Zuniga, 551 S.W.3d at 732-33.
Furthermore, the above-mentioned testimony sufficiently supports the jury’s
affirmative deadly-weapon finding. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim.
App. 2005) (“To hold evidence legally sufficient to sustain a deadly weapon finding, the
evidence must demonstrate that: (1) the object meets the statutory definition of a
dangerous weapon . . . (2) the deadly weapon was used or exhibited during the
transaction from which the felony conviction was obtained; . . . and (3) that other people
were put in danger.”); Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d) (“A ‘firearm’ is therefore a deadly weapon, per se.” (internal citation
omitted)); see also Lewis v. State, 2012 Tex. App. LEXIS 86, at *13 (Tex. App.—Waco Jan. 4,
2012, pet. ref’d) (mem. op., not designated for publication) (“Testimony using any terms
gun, pistol or revolver is sufficient to authorize the jury to find that a deadly weapon was
used.” (internal citations & quotations omitted)). We therefore overrule Nelson’s first
three issues.
D. THE JURY CHARGE
In his fourth issue, Nelson contends that his right to a unanimous jury verdict was
denied because the State presented evidence that he committed the offense of unlawful
Nelson v. State Page 9 possession of a firearm by a felon on multiple occasions, and because the jury charge did
not require the jury to agree unanimously on the particular offense.
A. Unanimity
A jury must reach a unanimous verdict about the specific crime the defendant
committed. See U.S. CONST. amends. V, XIV, TEX. CONST., art. V, § 13; TEX. CODE CRIM.
PROC. ANN. art. 36.29(a) (West Supp. 2019); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.
App. 2011). “The jury must ‘agree upon a single and discrete incident that would
constitute the commission of the offense alleged.’” Cosio, 353 S.W.3d at 771 (quoting
Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). “[N]on-unanimity may occur
when the State charges one offense and presents evidence that the defendant committed
the charged offense on multiple but separate occasions.” Id. at 772.
When evidence is presented regarding multiple incidents, which would
individually establish different offenses, the “[court’s] charge, to ensure unanimity,
would need to instruct the jury that its verdict must be unanimous as to a single offense
or unit of prosecution among those presented.” Id.; see Ngo v. State, 175 S.W.3d 738, 748-
49 (Tex. Crim. App. 2005). Because it is the burden of the trial court to instruct the jury
as to the law applicable to the case, see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007),
the trial court must submit a charge to the jury that “does not allow for the possibility of
a non-unanimous verdict.” Cosio, 353 S.W.3d at 776.
B. Charge Error
Nelson v. State Page 10 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).
C. Discussion
In the instant case, we cannot say that the trial court erred by failing to include an
instruction on unanimity because Nelson’s possession of the firearm on multiple days
did not establish a different offense or unit of prosecution. Indeed, “[a] ‘units’ analysis
consists of two parts: (1) what the allowable unit of prosecution is, and (2) how many
units have been shown.” Ex parte Benson, 459 S.W.3d 67, 73 (Tex. Crim. App. 2015)
(internal citations omitted). “The first part of the analysis is purely a question of statutory
construction and generally requires ascertaining the focus or gravamen of the offense.
The second part requires an examination of the trial record, which can include the
evidence presented at trial.” Id. (internal citations omitted).
“[W]ith a possession-oriented statute[,] the proscribed item is the allowable unit of prosecution. See Watson v. State, 900 S.W.2d 60, 62 (Tex. Crim. App. 1995) (holding that possession of heroin and possession of cocaine were separate offenses even though they arose out of a single transaction); Nichols v. State, 52 S.W.3d 501, 503 (Tex. App.—Dallas 2001, no pet.) (holding that possession of each proscribed controlled substance is a separate offense); compare with Lopez v. State, 108 S.W.3d 293, 300 (Tex. Crim. App. 2003) (holding that offer to sell and possession of drugs to complete that specific sale is one single offense).
Nelson v. State Page 11 Ex parte Gonzalez, 147 S.W.3d 474, 477-78 (Tex. App.—San Antonio 2004, pet. ref’d).
“Under section 46.02(a), a defendant ‘may be held accountable for the gravamen of the
offense—the [unlawful carrying] of [a weapon] in our society.” Id. at 479 (quoting Lopez,
108 S.W.3d at 300 & citing Lahue v. State, 51 Tex. Crim. 159, 101 S.W. 1008, 1010 (1907)).
Accordingly, the Gonzalez Court held that “the allowable unit of prosecution under
section 46.02 is the weapon.” Id.; see Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App.
2010) (noting that absent an explicit statutory statement as to the allowable unit of
prosecution, the best indicator of legislative intent regarding the unit of prosecution is
the gravamen of the offense); see also Dorsey v. State, Nos. 01-18-00520-CR, 01-18-00521-
CR, & 01-18-00522-CR, ___ S.W.3d ___, 2019 Tex. App. LEXIS 10761, at *19 (Tex. App.—
Houston [1st Dist.] Dec. 12, 2019, no pet.) (“The language of the felon-in-possession-of-
firearm statute shows that the gravamen of the offense is the circumstances surrounding
the proscribed conduct.”).
In this case, the evidence showed that Nelson, a felon, took possession of a single,
specific firearm days before the shooting and ultimately used the firearm to shoot at
Trooper Ferguson. Because a violation under section 46.04(a) arises only by the
circumstance that Nelson had been adjudicated a felon, and because he possessed a
single, specific firearm illegally, we reject Nelson’s contention that a unanimity
instruction was required on the basis that each day’s possession of the single, specific
firearm constituted a separate and distinct offense. See Ex parte Benson, 459 S.W.3d at 73;
Nelson v. State Page 12 Ex parte Amador, 326 S.W.3d at 211; Jones, 323 S.W.3d at 889; Ex parte Gonzalez, 147 S.W.3d
at 479; see also Dorsey, 2019 Tex. App. LEXIS 10761, at *19. As presented, the jury charge
did not allow for a non-unanimous verdict concerning the specific criminal act—
unlawful possession of a firearm by a felon—Nelson committed and, thus, was not
erroneous. See Hutch, 922 S.W.2d at 170. We therefore overrule Nelson’s fourth issue.
E. REQUESTED JURY-CHARGE INSTRUCTION ON ACCOMPLICE-WITNESS TESTIMONY
In his fifth and sixth issues, Nelson argues that the trial court erred by failing to
issue instructions in the charge regarding accomplice-witness testimony. Specifically,
Nelson asserts that Lott and Greeno were accomplices to the offenses of aggravated
assault of a public servant and unlawful possession of a firearm by a felon and that the
trial court should have given an accomplice-witness instruction as to the testimony of
each man.
An accomplice-witness instruction does not say that the jury should be skeptical
of accomplice-witness testimony. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.
2002). Nor does it tell the jury that such testimony should receive less weight than other
evidence. Id. Rather, the instruction informs the jury that it cannot use the accomplice-
witness testimony unless there is also some non-accomplice witness evidence connecting
the defendant to the offense. Id. Once it is determined that such non-accomplice witness
evidence exists, the purpose of the instruction is fulfilled, and the instruction plays no
further role in the jury’s decision-making. Id. Thus, non-accomplice witness evidence
Nelson v. State Page 13 can render harmless a failure to submit an accomplice-witness instruction by fulfilling
the purpose an accomplice-witness instruction is designed to serve. Id.
“[A] harm analysis for the omission of an accomplice witness instruction should
be flexible, taking into account the existence and strength of any non-accomplice evidence
and the applicable standard of harm.” Id. We examine the strength of non-accomplice
witness testimony by its reliability or believability and by the strength of its tendency to
connect the defendant to the crime. Id. The reliability inquiry is satisfied when there is
non-accomplice witness evidence, and there is no rational and articulable basis for
disregarding the evidence or finding that it fails to connect the defendant to the offense.
Id. at 633.
The applicable standard of harm depends upon whether the defendant preserved
error by bringing the improper omission to the trial court’s attention. Id. at 632. When
the defendant has failed to preserve error, as is the case here, the harm must be egregious.
Id.
Assuming, without deciding, that the trial court erred by failing to provide an
accomplice-witness instruction in this case, we cannot say that Nelson was harmed.
Nelson’s connection to both offenses was sufficiently corroborated by other evidence,
including text messages between Greeno and Nelson found on Nelson’s cell phone that
pertained to payment for the firearm, the in-car video recording of the incident, and the
testimony of Trooper Ferguson that the firearm was in the vehicle with Nelson and that
Nelson v. State Page 14 shots were fired at Trooper Ferguson from the passenger-side of the vehicle further
connected Nelson to the offenses. Additional corroborating evidence included Nelson’s
evasion from apprehension in Lott’s vehicle after the shots were fired. See Figueroa, 250
S.W.3d at 503 (noting that evidence of attempting to flee is admissible and may indicate
a consciousness of guilt).
Because there is some evidence that tends to connect Nelson to both offenses and
there is no rational and articulable basis for disregarding the evidence or finding that it
fails to connect Nelson to the offense, the purpose of a proper accomplice-witness
instruction was fulfilled. See Herron, 86 S.W.3d at 632 (“Under the egregious harm
standard, the omission of an accomplice witness instruction is generally harmless unless
the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as to render the
State’s overall case for conviction clearly and significantly less persuasive.’” (quoting
Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991))). Therefore, we find that
the purported error, if any, by the trial court was harmless. See id. Accordingly, we
overrule Nelson’s fifth and sixth issues.
F. CONCLUSION
Having overruled all of Nelson’s issues on appeal, we affirm the judgments of the
trial court.
JOHN E. NEILL Justice Nelson v. State Page 15 Before Chief Justice Gray, Justice Davis, and Justice Neill (Chief Justice Gray concurring with a note)* Affirmed Opinion delivered and filed March 11, 2020 Do not publish [CRPM]
*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)
Nelson v. State Page 16