ACCEPTED 12-15-00007-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 8/3/2015 11:04:16 AM CATHY LUSK CLERK
NUMBER 12-15-00007-CR FILED IN 12th COURT OF APPEALS TYLER, TEXAS 8/3/2015 11:04:16 AM IN THE TWELFTH DISTRICT COURT OF APPEALS CATHY S. LUSK Clerk TYLER, TEXAS
CHRISTOPHER EARL THURMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
From the 7th District Court of Smith County, Texas Trial Cause Number 007-1224-14
STATE’S BRIEF
ORAL ARGUMENT NOT REQUESTED
D. MATT BINGHAM Criminal District Attorney Smith County, Texas
AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692 Smith County Courthouse, 4th Floor Tyler, Texas 75702 Phone: (903) 590-1720 Fax: (903) 590-1719 Email: arediker@smith-county.com TABLE OF CONTENTS
Index of Authorities .................................................................................................. 2
Statement of Facts .................................................................................................... 3
Summary of Argument ............................................................................................. 4
I.ISSUE ONE: The logical force of the evidence linking appellant to the revolver found in his motel room was sufficient to show actual care, custody, control, or management of the firearm. .......................................................................................................... 5 Standard of Review................................................................................................... 5 Argument ................................................................................................................. 6
II.ISSUES TWO AND THREE: Appellant failed to preserve any error in the trial court’s alleged failure to consider the full range of punishment, and even if he had, deferred adjudication community supervision was unavailable to him. .................................. 10 Argument ............................................................................................................... 10
Certificate of Compliance....................................................................................... 12
Certificate of Service .............................................................................................. 13
1 INDEX OF AUTHORITIES
Texas Cases
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ........................................ 5 Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) .......................................... 7 Hawkins v. State, 89 S.W.3d 674 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) . 6 Hernandez v. State, 538 S.W.2d 127 (Tex. Crim. App. 1976)................................... 7 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................ 6 James v. State, 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)... 6 Jones v. State, 338 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2011)................ 7, 9 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................... 5 Reed v. State, 644 S.W.2d 479 (Tex. Crim. App. 1983) .......................................... 11 Stout v. State, 426 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........ 6 Sutton v. State, 328 S.W.3d 73 (Tex. App.—Fort Worth 2010, no pet.) .................... 8 Teixeira v. State, 89 S.W.3d 190 (Tex. App.—Texarkana 2002, pet. ref’d) ............. 10 Villegas v. State, 871 S.W.2d 894 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d) .. 9 Washington v. State, 71 S.W.3d 498 (Tex. App.—Tyler 2002, no pet.)................... 10 Willis v. State, 192 S.W.3d 585 (Tex. App.–Tyler 2006, pet. ref’d) (mem. op.) ........ 9
Texas Statutes Tex. Code Crim. Proc. art. 42.12, § 5 ..................................................................... 11 Tex. Penal Code Ann. § 1.07 .................................................................................... 6 Tex. Penal Code Ann. § 6.01 .................................................................................... 6
Texas Rules Tex. R. App. P. 33.1 ............................................................................................... 10
Federal Cases Jackson v. Virginia, 443 U.S. 307 (1979).................................................................. 5
2 NUMBER 12-15-00007-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS
From the 7th District Court of Smith County, Texas Trial Cause Number 007-1224-14
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant Criminal
District Attorney, respectfully requesting that this Court overrule appellant’s issues and
affirm the judgment of the trial court in the above-captioned cause.
STATEMENT OF FACTS
Appellant has stated the essential nature of the proceedings and the evidence
presented at trial (Appellant's Br. 3-5). In the interest of judicial economy, any other
3 facts not mentioned therein that may be relevant to the disposition of appellant's issues
will be discussed in the State's arguments in response.
SUMMARY OF ARGUMENT
In a bench trial for the offense of unlawful possession of a firearm by a felon, the
evidence showed the following links between appellant and the revolver found in his
motel room: appellant’s presence at the time of the search, the firearm’s proximity
and accessibility to appellant, his right to control and possess the location where the
firearm was found, the presence of other contraband, a special connection or
relationship between appellant and the firearm, and that the firearm was found in an
enclosed space within his room. Viewing the evidence in the light most favorable to
the verdict, the logical force from these links was sufficient for a rational trier of fact
to have found beyond a reasonable doubt that appellant exercised care, custody, control,
or management over the revolver. While appellant also argues that the trial court
refused to consider the entire range of punishment, he failed to preserve any error for
review by not raising a timely objection at trial. Even if appellant had raised a timely
objection, the trial court made its finding of guilt following a bench trial on appellant’s
plea of “not guilty”, and appellant was therefore ineligible to receive deferred
adjudication community supervision.
4 I. ISSUE ONE: The logical force of the evidence linking appellant to the revolver found in his motel room was sufficient to show actual care, custody, control, or management of the firearm.
STANDARD OF REVIEW
Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443
U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt." When conducting a legal sufficiency review, a reviewing court must ask
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, and not whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009). The same standard applies equally to circumstantial and
direct evidence. Id. When examining the evidence for legal sufficiency, a reviewing
court’s role is not to become a “thirteenth juror”, and it may not “re-evaluate the weight
and credibility of the record evidence” and thereby substitute its judgment for that of
the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Thus, “[t]he
reviewing court must give deference to the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
5 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) (internal quotation marks omitted).
ARGUMENT
In his first issue, appellant argues that the evidence linking him to the firearm
discovered during a consensual search of his motel room was legally insufficient to
support his conviction for unlawful possession of a firearm by a felon (Appellant’s Br.
7-13). “’Possession’ means actual care, custody, control, or management.” Tex. Penal
Code Ann. § 1.07(39) (West 2014). To constitute an offense, possession of the
prohibited item must be voluntary: “the possessor knowingly obtains or receives the
thing possessed or is aware of his control of the thing for a sufficient time to permit
him to terminate his control.” Tex. Penal Code Ann. § 6.01(a), (b) (West 2014).
Because the firearm at issue was not found on appellant or in his exclusive possession,
the State was required to prove possession by affirmatively linking the firearm to the
appellant. Stout v. State, 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012,
no pet.). “The State may establish possession by proving an ‘affirmative link,’ which
demonstrates that the defendant was conscious of his connection with the weapon and
knew what it was.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st
Dist.] 2008, pet. ref’d) (citing Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d). A nonexclusive list of factors that may establish
6 a link between a defendant and a firearm found inside a residence that was not in his
exclusive control includes whether:
(1) the defendant was present at the time of the search; (2) the defendant was the owner of or had the right to control the location where the firearm was found; (3) the firearm was in plain view; (4) the defendant was in close proximity to and had access to the firearm; (5) firearms or other contraband was found on the defendant; (6) the defendant attempted to flee; (7) conduct by the defendant indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (8) the defendant had a special connection or relationship to the firearm; (9) the place where the firearm was found was enclosed; and (10) affirmative statements connected the defendant to the firearm, including incriminating statements made by the defendant when arrested.
Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011), aff’d,
364 S.W.3d 854 (Tex. Crim. App. 2012). The number of links is not dispositive, “but
rather the logical force of all of the evidence, direct and circumstantial.” Evans v. State,
202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Furthermore, the absence of any of
the links listed above “is not evidence of appellant's innocence to be weighed against
evidence tending to connect appellant to the [contraband].” Hernandez v. State, 538
S.W.2d 127, 131 (Tex. Crim. App. 1976).
Here, the evidence established at least six links between appellant and the firearm:
his presence at the time of the search, the proximity and accessibility of the firearm,
appellant’s right to control the location where the weapon was found, the presence of
other contraband in the motel room, a special connection or relationship between
appellant and the firearm, and that the firearm was found in an enclosed space. See
7 Jones, 338 S.W.3d at 742. Appellant was present at the time of the search at
approximately eight o’clock in the evening at the Town House Motel in Tyler (V Rep.’s
R. at 59, 62). Moments before knocking on appellant’s door, Tyler Police officers
observed Brittany Stone, a theft suspect, enter appellant’s room at the motel (Id. at 60-
62). Appellant answered the door naked and told the officers that he had been sleeping
(Id. at 62). He stated that the room was his and gave them permission to enter and
arrest Ms. Stone (Id.). Appellant subsequently gave the officers consent to search his
motel room (Id. at 64, 66), and a .38 caliber revolver was discovered between the
mattress and box-spring of the bed where appellant had been sleeping (Id. at 73, 95,
97; State’s Exs. 22, 26). In addition to appellant’s presence at the scene during the
search and his close proximity to the weapon immediately before officers knocked on
his door, the motel manager later confirmed that appellant had rented the room a
couple of days before the search and “had been in the whole time.” (V Rep.’s R. at
104-05). Appellant thus had the right to control and possess the location where the
firearm was located. See Sutton v. State, 328 S.W.3d 73, 77 (Tex. App.—Fort Worth
2010, no pet.) (“As the State points out, the jury could have rationally inferred from
Sutton's statement of ownership or responsibility over the house that she could exercise
care, custody, and control over the house's contents, including the gun.”).
8 In his brief, appellant concedes that the revolver was found in an enclosed space
accessible to him—underneath the mattress of the only bed in the motel room
(Appellant’s Br. 12). Further, appellant had a special connection or relationship with
the firearm, as several rounds of .38 caliber ammunition were found in his nightstand
near the side of the bed where the revolver was located (V Rep.’s R. at 67,73, 95, 97-
98, 108). The ammunition was in a partially opened lockbox in the nightstand drawer,
along with a clear plastic baggie containing methamphetamine and a digital scale (Id.
at 67, 73, 95, 97-98, 107-08. See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.–
Tyler 2006, pet. ref’d) (mem. op.) (“whether the accused possessed other contraband
when arrested” can serve as an affirmative link). In fact, appellant had directed police
to that particular nightstand when asked for the keys to his vehicle parked outside (V
Rep.’s R. at 66-67, 69, 97). The green Kia sedan was registered to appellant and his
wife, and officers discovered a safe containing more .38 caliber ammunition,
appellant’s employee identification card from Goodwill Industries, and a Verizon bill
addressed to Sondra Thurman (Id. at 61, 75, 98-100, 113). See Jones, 338 S.W.3d at
742 (links showing special connection or relationship where one rifle found in room
with mail addressed to defendant and another gun found near his wallet and
prescription medication); Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.–Houston
[1st Dist.] 1994, pet. ref’d) (contraband’s location in relationship to the defendant's
9 personal belongings can serve as a link). Viewing the evidence in the light most
favorable to the verdict, the logical force from these links was sufficient for a rational
trier of fact to have found beyond a reasonable doubt that appellant exercised care,
custody, control, or management over the firearm. Therefore, appellant’s first issue is
without merit and should be overruled.
II. ISSUES TWO AND THREE: Appellant failed to preserve any error in the trial court’s alleged failure to consider the full range of punishment, and even if he had, deferred adjudication community supervision was unavailable to him.
In his second and third alleged issues, appellant claims that the trial court erred by
finding him guilty following a bench trial on guilt/innocence, but before hearing
evidence on punishment, without considering the option of deferred adjudication
community supervision (Appellant’s Br. 14-17). As a preliminary matter, appellant
did not object to the trial court’s finding of guilt at the conclusion of the guilt/innocence
phase of trial (V Rep.’s R. at 130). A complaint that the trial court refused to consider
the entire range of punishment for an offense or refused to consider the evidence and
imposed a predetermined punishment is not preserved for review unless a timely
objection is raised at trial. Tex. R. App. P. 33.1(a); Teixeira v. State, 89 S.W.3d 190,
192 (Tex. App.—Texarkana 2002, pet. ref’d); Washington v. State, 71 S.W.3d 498,
499-500 (Tex. App.—Tyler 2002, no pet.).
10 Even had appellant preserved the alleged error, he was not eligible for deferred
adjudication community supervision. “[W]hen in the judge's opinion the best interest
of society and the defendant will be served, the judge may, after receiving a plea of
guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates
the defendant's guilt, defer further proceedings without entering an adjudication of
guilt, and place the defendant on community supervision.” Tex. Code Crim. Proc. art.
42.12, § 5(a) (West 2014). “The power to defer adjudication rests solely within the
discretion of the trial court. The availability of the option is limited to defendants who
plead guilty or nolo contendere.” Reed v. State, 644 S.W.2d 479, 483 (Tex. Crim. App.
1983). Appellant, with his counsel present, entered a plea of “not guilty” to the offense
as charged in the indictment (V Rep.’s R. at 48), and a bench trial on the issues of
guilt/innocence and punishment followed. As appellant was therefore not eligible to
receive deferred adjudication community supervision from the trial court, his second
and third alleged issues are without merit and should be overruled.
11 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the
Court overrule appellant’s alleged issues and affirm the judgment of the 7th District
Court of Smith County, Texas, in the above-captioned cause.
Respectfully submitted,
D. MATT BINGHAM Criminal District Attorney Smith County, Texas
/s/ Aaron Rediker Aaron Rediker Assistant District Attorney SBOT #: 24046692 100 North Broadway, 4th Floor Tyler, Texas 75702 Office: (903) 590-1720 Fax: (903) 590-1719 (fax) arediker@smith-county.com
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney
certifies that the word count for this document is 2,073 words as calculated by
Microsoft Word 2013.
/s/ Aaron Rediker Aaron Rediker
12 CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 31st day of July 2015, the State’s Brief
in the above-numbered cause has been electronically filed, and a legible copy of the
State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant, at
jhugglerlaw@sbcglobal.net.