Christopher Cotten v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 2007
• Docket: 06-07-00119-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00119-CR

CHRISTOPHER DEWAYNE COTTEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 34447-B

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Christopher Dewayne Cotten appeals from his conviction on his open plea of guilty to the third-degree felony offense of possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003). Cotten was sentenced by the trial court to seven years' imprisonment.

On appeal, Cotten raises one point of error, contending the sentence should be set aside and remanded for a new trial on punishment due to factual insufficiency of the evidence during the punishment phase of his trial, citing as authority the case of Jackson v. Virginia, 443 U.S. 307 (1979). Cotten states specifically in his appellate brief that he "does not rely on a 'proportionality' approach under the Eighth Amendment."

A review of the evidence for factual sufficiency is inappropriate with respect to the assessment of punishment. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.--Eastland 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.--Beaumont 1998, no pet.); Flores v. State, 936 S.W.2d 478, 479 (Tex. App.--Eastland 1996, pet. ref'd). Therefore, we decline to conduct a factual sufficiency review of the evidence on punishment. See Smith v. State, Nos. 14-06-00829-CR, 14-06-00830-CR, 14-06-00831-CR, 14-06-00832-CR, 2007 Tex. App. LEXIS 9203 (Tex. App.--Houston [14th Dist.] Nov. 20, 2007, no pet. h.) (mem. op., not designated for publication).

Cotten also alleges that his right to Due Course of Law, Article I, Section 19, of the Texas Constitution, has been violated, but cites no authority or argument. Therefore, he has waived this complaint and we will not address it. Brumit v. State, 206 S.W.3d 639, 646 n.3 (Tex. Crim. App. 2006).

There being no other issues before us, we affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: December 18, 2007

Date Decided: December 31, 2007

Do Not Publish

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-10-00236-CR

                                         ODELL NEAL, JR., Appellant

                                       On Appeal from the 354th Judicial District Court

                                                              Hunt County, Texas

                                                            Trial Court No. 26652

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                     MEMORANDUM  OPINION

            On February 25, 2010, Odell Neal, Jr., was driving a Ford Explorer^[1] through Commerce, Hunt County, Texas, and was stopped for a traffic violation.  A search of the vehicle revealed a gun beneath a large pile of clothes in the rear area of the Explorer.  As Neal was a previously convicted felon, he was charged with unlawful possession of a firearm by a felon.  A jury found Neal was guilty and assessed punishment at eight years’ imprisonment.  Neal contends that the evidence supporting his conviction is legally insufficient.  We affirm the judgment of the trial court.

I.          Factual History

            Officer Alejandro Suarez saw Neal make an improper right turn, and initiated a traffic stop.  Neal parked the vehicle in a private parking lot.  Suarez recognized Neal^[2] and had prior knowledge that his driver’s license was suspended.  When asked, Neal admitted that his license was suspended, and Suarez placed Neal under arrest for driving with a suspended license.  At that time, Lieutenant Terry Miller arrived on the scene and got out of his patrol car to back up Suarez.

            Because the vehicle was in a private parking lot, Suarez decided to impound it.  Prior to having the vehicle towed away, Suarez and Miller inventoried the vehicle, to “itemize everything that’s in the vehicle, look through the vehicle and make sure that we check everything that’s in there” so there is documentation keeping track of what was in the vehicle at the time it was impounded.  During this inventory search, the officers found an unloaded .357 revolver^[3] in a “mountain of clothes” in the rear compartment of the Explorer.  Also found in the vehicle’s rear compartment was a video game console, “two guitars, some weight sets, some pool sticks.”  Neal claimed that the video game console and the two guitars were his.  Neal testified that he had never seen the gun before that day and had no idea it was in the vehicle.  Suarez testified that Neal told them that the revolver belonged to “[o]ne of his homies” and also that he thought he could have the gun while he was traveling.

             Lakenda Jones, Neal’s girlfriend, testified that the Explorer belonged to Neal’s mother, Betty Neal.  Jones and Neal lived and worked together.  According to Jones, she and Betty agreed that Jones would take over the payments on the Explorer, but that she could not let Neal drive it because he did not have a driver’s license.  According to Jones, the clothes and “stuff” inside the vehicle belonged to her, her children, and Neal, and it was still in the vehicle because the couple had recently moved.  Jones testified that she was familiar with the gun because one of her family members gave it to her.  She said that she put the gun in the vehicle instead of their apartment to keep the gun away from Neal because he was “not allowed to be around it.”  She put it under the clothes in the back of the vehicle because she washes the clothes and he does not, and she “knew he wasn’t going to go back there to mess with any of the clothes” because “he doesn’t wash.”  Jones testified that this was her fault because Neal “did not know the gun was in the car, and he wasn’t aware of it.” 

II.        Standard of Review

            In evaluating legal sufficiency, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of the charged offense beyond a reasonable doubt.  Brooks, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).  Our rigorous legal sufficiency review focuses on the quality of the evidence presented.  Brooks, 323 S.W.3d at 917 (Cochran, J., concurring).  We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

III.       Evidence Linking Neal to the Gun

            In Neal’s sole point of error, he argues that there is legally insufficient evidence that he unlawfully possessed a firearm.  We disagree.

            The sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  To prove unlawful possession of a firearm by a felon, the State was required to prove that Neal (1) possessed a firearm (2) “after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.”^[4]  Tex. Penal Code Ann. § 46.04(a)(1) (West 2011).  “[T]o support a conviction for possession of a firearm, the State must show (1) that the accused exercised actual care, control, or custody of the firearm, (2) that he was conscious of his connection with it, and (3) that he possessed the firearm knowingly or intentionally.”  Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.—Texarkana 2001, pet. ref’d).

            When the firearm is not found on the accused’s person or in his or her exclusive possession, additional facts must link the accused to the contraband.  Id. at 53; Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—Texarkana 1998, pet. ref’d).  The State can meet its burden with circumstantial evidence, but it must establish that the defendant’s connection with the firearm was more than fortuitous.  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  This rule protects the innocent bystander—such as a relative, friend, or even stranger to the actual possessor—from conviction merely because of his or her fortuitous proximity to a firearm belonging to someone else.  See Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006); Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d).  Some of the factors courts have used as links between the defendant and the contraband include:  (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, and (10) affirmative statements connect the accused to the contraband.  Smith v. State, 118 S.W.3d 838, 842 (Tex. App.—Texarkana 2003, no pet.).  The number of links present is not as important as the degree to which they tend to link the defendant to the firearm.  Washington v. State, 215 S.W.3d 551, 555 (Tex. App.—Texarkana 2007, no pet.); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.).

            In this case, several facts link Neal to the .357 revolver found in the rear area of the Explorer.  Neal was the driver, and sole occupant, of the vehicle.  A Crown Royal bag was found on the center console, near the driver’s seat.  The bag contained six .38 bullets, which Suarez testified could be fired from a .357 revolver.  Several pieces of Neal’s personal property, including a video game console and two guitars, were also found in the rear area of the vehicle.  After Neal was placed in custody and the gun was found, Suarez testified that Neal said, “Hey, I thought you could travel with a gun,” from which it could be logically inferred that he knew the gun was in the car, but thought it was not illegal to possess the firearm under those circumstances.  When taken as a whole, and viewed in the light most favorable to the verdict, these factors are sufficient to allow a reasonable jury to infer that Neal knowingly possessed, and had control of, the gun.  Accordingly, we overrule Neal’s point of error.

            We affirm the judgment of the trial court.

                                                                        Jack Carter

Date Submitted:          June 9, 2011

Date Decided:             June 15, 2011

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^[1]Neal was the only person in the vehicle.

^[2]Suarez had a photograph of Neal because he was a suspect in the theft of a gun that had occurred the previous night.  Suarez had never encountered Neal prior to the traffic stop. 

^[3]The gun found in the Explorer was not the gun that had been stolen the night before.  Nothing in the record indicates that Neal was ever charged with the theft.

^[4]In his testimony at trial, Neal admitted to being a convicted felon, and the indictment properly alleged Neal possessed a firearm “before the fifth anniversary of [Neal’s] release from confinement.”  The offense occurred within five years of Neal’s prior felony conviction, March 31, 2008.  Therefore, it is clear that the offense occurred within the relevant statutory time period, and Neal does not assert otherwise or raise this as an issue.