Eyambe, John v. State

Opinion

MODIFY and AFFIRM; and Opinion Filed March 27, 2013.

In The atnurt nf ipiahi 3iftI Htritt of ixa ill

No, 05- 11-01432-CR

JOHN EYAMEE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No, 1 Dallas County, Texas Trial Court Cause No. F11-33772-H

MEMORANDUM OPINION Before Justices Bridges, ONeill, and Murphy Opinion by Justice Murphy

John Eyambe waived a jury and pleaded not guilty to possession of a prohibited weapon,

a short-barrel firearm. See TEx. PENAL CODE ANN. § 46,05(a)(3) (West Supp. 2012). After finding appellant guilty, the trial court assessed punishment at three years’ imprisonment,

probated for three years, and a $250 fine. In a single point of error, appellant challenges the

sufficiency of the evidence to support his conviction. The State asks in a cross-point of error for

a modification of the trial court’s judgment to reflect appellant pleaded not guilty. We modify

the judgment as requested and affirm the trial court’s judgment as modified. Background

Irving police officers. Paul Tong and Travis Huckahy, were dispatched on March 5, 2(11 1

to investigate a (lomestic disturbance at an apartment located at 2434 MacArthur Boulevard.

Appellant’s lather opened the door to the apartment and gave his consent for the officers to come

inside and “make sure everyone was okay.’ The officers walked through the apartment and

found the door to one bedroom was closed. They knocked on the bedroom door, and it was

opened by appellant’s brother, Mukete Eyambe. Mukete’s girlfriend, Jacqueline Edwards, also

was inside the room.

Huckaby testified that as he stood at the entry of the bedroom, he could see a digital scale

and small black haggies scattered on the floor. He explained the haggies were consistent with

the packaging of narcotics. The officers also saw marijuana stems on the floor and a large plastic

hag that smelled like inariuana. Tong took Jacqueline to another room where she told Tong

there had been an earlier disturbance in the apartment. Huckahy stayed with Mukete, who gave

l1uckaby verbal and written consent to search the bedroom. Huckahy seized the baggies, the

large bag, which contained marijuana stems and residue, and several white pills identified as

Seroquel that were found in the back corner of the room.

Huckaby also searched the room’s two closets. He saw numerous baggies that were “still

folded up like they come packaged” all over the inside of one closet. In the second closet, he

found shotgun shells, more small baggies, and clothes scattered throughout the bottom of the

closet. He also found a black safe on the top shelf with a sticker or magnet on the side that read

“JOHN EYAMBE #32” with a picture of a basketball and what appears to be a mascot. On top

of the safe, there was some mail addressed to appellant at that apartment address. Other

paperwork and mail bearing appellant’s name were found scattered all over the top shelf. At one point, Jacqueline was escorted back to the bedroom to retrieve her purse. As she

got her purse, she pointed at the safe and told Tong that he “needed to look in there” Tong

testified Jacqueline did not specify what was inside the safe, but he described her statement as “a

strong indication” for him to look in it, After obtaining a search warrant, Huckaby removed the

safe from the closet and observed two large holes on the back side of the safe through which he

could see the barrel of a shotgun. Tong later opened the safe at the police station where he found

a “sawed-off shotgun” with a barrel length of less than eighteen inches. No usable fingerprints

were found on the gun. The safe was not tested for fingerprints.

During the search of the bedroom, Mukete told Huckaby “that everything that was inside

that room” belonged to appellant, who was not at the apartment. The officers learned that

appellant was in jail at the time. When they got back to the station, they confirmed there was a

person named “John Eyambe” with the same apartment address listed as his primary address

currently in custody at the Dallas County jail.

Sufficiency of the Evidence

Appellant contends the evidence is insufficient to prove he possessed the firearm found in

the black safe. He maintains that because he did not have exclusive possession of the apartment

or bedroom, the State was required to link him affirmatively to the shotgun. He claims the

evidence offered by the State to connect him to the shotgun is “tenuous” and “does not support a

reasonable inference that [hel possessed a prohibited weapon.”

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence

in the light most favorable to the verdict and determine whether a 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 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This

-3- standard reeognrfes the responsibility ot the tact tinder “to resolve conflicts in the testimony. to

weiLh the evidence, and to draw reasonable inferences &om basic facts to ultimate facts.”

.Iackson. 443 U.S. at 3 19. We defer to the tact tinder s credibility and weight determinations

because the trier of tact is the sole judge of the witnesses’ CrC(lihility and the weight to he given

their testimony. Sec Id. at 326.

The trial court found appellant guilty of possession of a prohibited weapon, a short-barrel

firearm. To prove beyond a reasonable doubt appellant committed the offense as charged, the

State had to establish appellant intentionally or knowingly possessed a short-barrel firearm. TEx.

PENAL CoDE ANN. § 46.05(a)(3). “Possession” means “actual care, custody, control, or

management.” Id. § I .07(a)(39) (West Supp. 2012). A person commits a possession offense

only if he voluntarily possesses the prohibited item. Id. § 6.01(a) (West 2011).

While the State must prove appellant possessed the firearm intentionally or knowingly, it

does not have to prove appellant had exclusive possession of the firearm. See Smith v. State, 176

S.W,3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d). Rather, joint possession is sufficient to

sustain a conviction. Id. (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)).

When there is no evidence that the accused was in exclusive control of the place where the

firearm is found, we cannot conclude or presume that the accused had knowledge of and control

over the firearm “unless there are additional independent facts and circumstances which

affirmatively link the accused to the Ifireanni.” Blackman v. State, 350 S.W.3d 588, 595 (Tex.

Crim. App. 2011) (quoting Poindexter i’. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005));

see also Brown i’. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Bates v. State, 155

S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). The evidence linking the accused to the

firearm may be direct or circumstantial, but the State must establish beyond a reasonable doubt

-4-. that the accused’s connection to the prohibited weapon was “more than just fortuitous,”

Blackman, 350 S.W3d at 594; Brown, 911 S.W.2d at 747.

In determining whether sufficient links exist, we examine factors such as whether the

firearm was in plain view, whether appellant owned or had the right to possess the residence

where the firearm was found, whether he was in close proximity to the firearm and had ready

access to it or whether it was found on him, whether he attempted to flee, whether his conduct

indicated a consciousness of guilt, whether he had a special connection to the firearm, whether

the firearm was found in an enclosed space, and whether he made incriminating statements.

Smith, 176 S.W.3d at 916; Bates, 155 S.W.3d at 216—17. These links are not a “litmus test,” and

the “affirmative links rule” is not “an independent test of legal sufficiency.” Evans v. State, 202

S.W.3d 158, 162 n,9 & 12 (Tex. Crim. App. 2006). They are “simply some factors which may

circumstantially establish the legal sufficiency of the evidence to prove a knowing ‘possession.”

Id. at 162 n.12. It is the “logical force” of the evidence, and not the number of links, that

supports a fact finder’s verdict. Id. at 162, 166; Taylor v. State, 106 S.W.3d 827, 831 (Tex.

App.—Dallas 2003, no pet.).

Appellant argues that only one of the factors listed above—that the officers found the

firearm in an enclosed space—is present in this case and application of the one factor with the

totality of the circumstances leads to the conclusion appellant did not possess the firearm. But

no set formula of facts dictates a finding of links sufficient to support an inference of knowing

possession of a firearm. Smith, 176 S.W.3d at 916. Additionally, the absence of some of the

factors is not “evidence of innocence” that must be weighed against the factors that are present.

Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). Based

on the circumstantial evidence presented in this case, when viewed in combination and its sum

-5- total, we conclude there are sufficient facts and circumstances to link appellant to the shortbarrel

firearm found in the black safe.

The evidence established that a shortharrel firearm was found in a locked safe located on

the top shelf of a closet in one of the two bedrooms in the apartment. The safe had a magnet or

sticker affixed to its side displaying appellant’s name, Pieces of mail addressed to appellant at

the apartment were found on top of and next to the safe in the bedroom closet. Other documents

bearing appellant’s name also were found on top of the safe and to the side of the safe on the

shelf. The “Adult Information Services” printout from appellant’s booking records with Dallas

County, which was admitted as an exhibit, also confirmed that appellant’s last known primary

address as of March 2, 201 1 was the same address as the apartment and matched the address

shown on the mail.

Huckaby also found clothes inside the same closet as the safe. Although Mukete had

been in the bedroom with his girlfriend when the officers arrived at the apartment, Huckaby

stated the clothes were “not consistent with what [Muketej would wear at all.” Huckaby

described Mukete as a “husky,” larger gentleman. In contrast, the AIS printout listed appellant’s

height as six feet two inches and weight as 150 pounds. Huckaby testified the “clothing that was

inside the closet” would be “consistent with what [appellanti would wear.”

Huckaby testified that when he stood in the doorway to that bedroom and saw the baggies

and marijuana on the floor in plain view and then began talking to Mukete about what “the

narcotic baggies [were I for,” Mukete told Huckaby that “everything that was inside that room

was [appellant’sl.” Appellant argues that because Mukete had been taken into custody that day

for lying to the officers, Mukete’ s statement to Huckaby does not connect appellant to the safe in

the bedroom. But the fact that Mukete had lied and been taken into custody for “fail[urej to I.D.

-6- fugitive” was before the fact finder, and we defer to the fact finder’s determinations regarding

the weight to be given the inference raised by this fact, Jackson, 443 US. at 326. The fact

finder was entitled to weigh this fact against appellant and in favor of the State. Further, neither

Mukete nor his girlfriend was arrested that day on drugrelated charges.

There is no dispute that appellant was not present at the apartment when the officers

responded to the dispatch, received consent from Mukete to search the bedroom, or executed the

search warrant for the locked safe. Nor was appellant present when the safe was opened at the

police station. The evidence did show, however, that appellant had at least joint possession of

the apartment based on the mail with appellant’s name and address, the confirmation of his

primary address on the booking information, and the fact that clothes consistent with what he

would wear were found inside the apartment bedroom. Joint possession is sufficient to sustain a

conviction if presented with additional independent facts and circumstances linking appellant to

the firearm. Blackman, 350 S.W.3d at 595; Smith, 176 S.W.3d at 916. Those facts and

circumstances are present here.

Viewing all the evidence in the light most favorable to the verdict, the logical force of the

combined pieces of circumstantial evidence in this case, together with reasonable inferences

from them, could lead a rational fact finder to determine that appellant possessed the short-barrel

shotgun found in the black safe. We therefore conclude the evidence is sufficient to support

appellant’s conviction for possession of a prohibited weapon. We overrule appellant’s sole point

of error.

Modification of the Judgment

In a single cross-point, the State asks this Court to modify the trial court’s written

judgment to reflect that appellant pleaded not guilty to the indictment. The judgment recites that

-7- appellants plea to the oliense was “Guilty. Ihe record, however, shows apj)elIant entered a

plea of not guilty to the ollense charged in the indictment. The trial court accepted appellant’s

plea of not guilty and heard testimony from witnesses. Thus, the judgment is incorrect.

The record provides the necessary information to correct the judgment, and this Court has

the authority to (10 so. TF:x. R. App. P. 43.2(h); Bigk’v v. State, 865 S.W2c1 27, 28 (Tex. Crim.

App. 1993). We therefore sustain the State’s crosspoint and modify the judgment accordingly.

We affirm the trial court s judgment as niodified.

i/i /1 K A

JUSTICE

Do Not Publish TEx. R. APP. P.47

11 1432F.U05 0 Qtiurt ni 1iftI! Thtrict uf iprati at Jallai JUDGMENT

JOHN EYAMBE, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 051 lMl432CR V. Trial Court Cause No. Fl L-33772Fl. Opinion delivered by Justice Murphy. THE STATE OF TEXAS. Appellec Justices Bridges and (YNeill participating.

Based on the Cowls opinion of this date, the judgment of the trial court is MODIFIED as follows:

The “Plea to Offense is modified to read: “NOT GUILTY.”

As modified, the judgment is AFFIRMED.

Judgment entered this 27th day of March, 2013.

MARY MURPHY : JUSTICE