George, Christopher Anthony

• Court: Court of Appeals of Texas
• Decided: November 12, 2015
• Docket: PD-1463-15
• Status: Published

Opinion

PD-1463-15 PD-1463-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/10/2015 1:28:35 PM Accepted 11/12/2015 1:30:05 PM ABEL ACOSTA PD No. CLERK

IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

CHRISTOPHER ANTHONY GEORGE, § Appellant § § CAUSE NO. 03-14-00763-CR V. § § TRIAL COURT NO. 72519 THE STATE OF TEXAS, § Appellee §

PETITION FOR DISCRETIONARY REVEW FROM THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS

CHIEF JUSTICE JIM WRIGHT, PRESIDING

PETITION OF PETITIONER (APPELLANT)

COPELAND LAW FIRM PO Box 399 Cedar Park, Texas 78613 Tel. 512-897-8126 Fax. 512-215-8144

ERIKA COPELAND State Bar No. 16075250 Attorney for Appellant November 12, 2015 TABLE OF CONTENTS

Page

Table of Contents i-iii

Index of Authorities iv

I. Identity of Trial Court and Parties 1

II. Statement Regarding Oral Argument 2

III. Statement of the Case 3

IV. Statement of the Procedural History of the Case 4

V. Ground for Review 4

The Court of Appeals erred and deviated from prior decisions which refute the idea that jurors must be able to “do the math” to reach conclusions supported by the evidence when it determined that there was sufficient evidence supporting appellant’s conviction for possession of a firearm by a felon. Specifically, the Court of Appeals erred in finding sufficient evidence that the State proved a “release date” from prison for purposes of proving appellant possessed a firearm within five years of that date. See Fagen v. State, 362 S.W.3d 796 800 (Tex. App. – Texarkana 2012, pet. ref’d) (“The date of release from confinement is necessary to determine the maximum length of this period specifically when the period extends beyond the five years from the date of conviction.”)(quoting Tapps v. State, 257 S.W.3d 438, 445 [Tex. App. – Austin 2008), aff’d on other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009]).

VI. Summary of the Argument 5

VII. Background and Statement of Pertinent Evidence 6

VIII. Court of Appeals’ Decision 6 i TABLE OF CONTENTS, continued Page

IX. Argument 7

A. The Court of Appeals deviated from the norm in such a manner that a review of its opinion is required.

(1) The Court of Appeals erroneously distinguishes the Fagen and Saldana cases.

(a) The pen packet on which the Court distinguishes Saldana was offered by the State only to prove a prior conviction.

(b) The State did not argue that the pen packet proved date of release.

(2) The Court of Appeals’ reliance on the pen packet to prove date of release is misplaced as it still requires a jury to “do the math”

(a) Under the Court of Appeals’ reasoning, the jury must, of necessity, read the entirety of the pen packet to arrive at its conclusion.

(b) The jury must not only read but understand the terms and conditions of a State agency’s internally generated document to find evidence of George’s date of release.

B. The Court of Appeals’ opinion erroneously distinguishes precedent in a manner that fails to acknowledge that this verdict was not rationally determined from the evidence presented at trial. TABLE OF CONTENTS, continued Page

X. Prayer 10

XI. Certificate of Service and Compliance with Rule 9 10

3 INDEX OF AUTHORITIES

Authorities Page

United States Supreme Court cases

Jackson v. Virginia 6 443 U.S.307, 313 (1979)

Texas Court of Criminal Appeals cases

Hooper v. State 8 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)

Laster v. State 6 275 S.W.3d 512 (Tex. Crim. App. 2010)

Temple v. State 6 390 S.W.3d 341, 360 (Tex. Crim. App. 2013)

Texas Court of Appeals cases

Fagen v. State ii,4,5,7 362 S.W.3d 796 800 (Tex. App. – Texarkana 2012, pet. ref’d)

Saldana v. State ii,7,8 418 S.W.3d 722 (Tex. App. – Amarillo 2013, no pet)

Tapps v. State i,4 257 S.W.3d 438, 445 [Tex. App. – Austin 2008), aff’d on other grounds, 294 S.W.3d 175 (Tex. Crim. App. 2009]).

Statutes

TEX. PENAL CODE §46.04(a)(1) (West 2010) 3

4 I. IDENTITY OF TRIAL COURT AND PARTIES

TO THE COURT OF CRIMINAL APPEALS:

NOW COMES Christopher Anthony George, appellant, who would show the

Court that the trial court and interested parties herein are as follows:

HON. MARTHA J. TRUDO, Judge Presiding, 264th Judicial District Court,

P.O. Box 747, Belton, Texas 76513.

CHRISTOPHER ANTHONY GEORGE, appellant, TDCJ No. 01963080,

Beto Unit, 1391 FM 3328, Tennessee Colony, Texas 75880.

STEVE STRIEGLER, trial attorney for appellant, P.O. Box 1683, Belton,

Texas 76513.

ERIKA COPELAND, appellate attorney for appellant, P.O. Box 399, Cedar

Park, Texas 79613.

MICHAEL WALDMAN and BOB ODOM, Bell County Assistant District

Attorneys, trial and appellate attorneys, respectively, for appellee, the State of Texas,

P.O. Box 540, Belton, Texas 76513.

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 1 II. STATEMENT REGARDING ORAL ARGUMENT

Appellant believes the clarity of the issue in this case is such that oral

argument would add nothing.

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 2 PD No.

CHRISTOPHER ANTHONY GEORGE, § Appellant § § CAUSE NO. 03-14-00763-CR V. § § TRIAL COURT NO. 72519 THE STATE OF TEXAS, § Appellee §

PETITION FOR DISCRETIONARY REVEW FROM THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS

CHIEF JUSTICE JEFF ROSE, PRESIDING

III. STATEMENT OF THE CASE

A jury found Christopher Anthony George guilty of unlawful possession of a

firearm by a felon. See TEX. PENAL CODE §46.04(a)(1) (West 2010). The trial

court assessed his punishment at confinement in the Institutional Division of the

Texas Department of Criminal Justice for a term of eighteen (18) years.

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 3 IV. STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The Third Court of Appeals at Austin, Texas, by Memorandum Opinion dated

October 16, 2015, affirmed George’s conviction and sentence. A copy of that

opinion is hereto attached as if fully incorporated herein at length.

V. GROUND FOR REVIEW

The Court of Appeals erred and deviated from prior decisions which refute

the idea that jurors must be able to “do the math” to reach conclusions supported by

the evidence when it determined that there was sufficient evidence supporting

appellant’s conviction for possession of a firearm by a felon. Specifically, the Court

of Appeals erred in finding sufficient evidence that the State proved a “release date”

from prison for purposes of proving appellant possessed a firearm within five years

of that date. See Fagen v. State, 362 S.W.3d 796 800 (Tex. App. – Texarkana 2012,

pet. ref’d) (“The date of release from confinement is necessary to determine the

maximum length of this period specifically when the period extends beyond the five

years from the date of conviction.”)(quoting Tapps v. State, 257 S.W.3d 438, 445

[Tex. App. – Austin 2008), aff’d on other grounds, 294 S.W.3d 175 (Tex. Crim.

App. 2009]).

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 4 VI. SUMMARY OF THE ARGUMENT

Very clearly, the State proved that George had a previous conviction for

robbery from 2009. However, the State did not produce evidence of the date of his

release from confinement from that conviction. Neither did his prior judgment nor

any other evidence adduced at trial prove beyond a reasonable doubt that he was

released from supervision for the conviction under community supervision, parole,

or mandatory supervision, within five years of the date of the anniversary of that

conviction. See Fagan v. State, 326 S.W.3d 796 (Tex. App. – Texarkana 2012, pet.

ref’d). The Court of Appeals erred when it determined there was legally sufficient

evidence to support the decision, nevertheless, on the basis that appellant’s pen

packet contained a reference to his transfer from county jail to prison. That result

deviates from the norm set forth in prior decisions which refute the idea that jurors

must be able to “do the math” to reach conclusions supported by the evidence. Not

only must jurors be expected, in this case, to read the entirety of an exhibits offered

and argued to prove a prior conviction; but, the jurors must also be able to interpret

and understand the terms and meanings of documents generated by a state agency

with which, most probably, they are unfamiliar.

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 5 VII. BACKGROUND AND STATEMENT OF PERTINENT EVIDENCE1

Appellant was arrested for driving with a suspended license on February 10,

2014. (R.R. 6, pp. 46-47). His vehicle was impounded, leading to the discovery of

a gun and loaded magazine inside. (R.R. 6, pp. 88-89). Appellant was subsequently

tried for possession of a firearm by a felon under Texas Penal Code §46.04(a)(1).

The indictment and jury charge alleged that appellant possessed a firearm on

February 10, 2014, and that this date fell before the fifth anniversary of his release

from confinement or parole for his prior felony conviction of robbery. (C.R. 1, p.

5).

At trial, the arresting officer testified that appellant told him that he was on

parole. The State admitted a judgment and pen packet to prove that George was

convicted of robbery on January 29, 2009. The packet noted that he was

“transferred” from the county jail to the penitentiary on February 18, 2009 to serve

a three-year sentence. See State’s Exhibit 1. Neither George nor the State offered

evidence of the specific date of appellant’s release.

VIII. COURT OF APPEALS’ DECISION

The Court of Appeals employed the correct standards for a due process review

of the sufficiency of the evidence to support the jury’s verdict. See Jackson v.

1 George here adopts the “Background” set forth by the Court of Appeals in its opinion.

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 6 Virginia, 443 U.S.307, 313 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex.

Crim. App. 2013) and Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2010).

Here, the appellate court noted that appellant’s judgment and pen packet indicates

he was transferred to prison to serve his sentence on a date certain, that his release

date had necessarily to be after that date. Therefore, the Court reasoned, he had to

possess a firearm prior to the fifth anniversary of his release date, and the State’s

burden of proof in that regard was satisfied. See Slip op. at 5.

IX. ARGUMENT

Here, George takes issue with the Court of Appeals’ reasoning that the date

of his release from confinement was established for proof of the offense charged by

the introduction of a judgment and pen packet. In fact, the Court errs when it reaches

that decision by distinguishing the Fagen and Saldana2 cases from the case under

review.

The judgment and pen packet were introduced by the State in this case, not to

prove confinement and date of release, but to bolster other fingerprint evidence to

support proof of his conviction. See State’s Exhibit 2. Certainly, the State did not

argue at any time that it proved anything else.

2 Saldana v. State, 418 S.W.3d 722 (Tex. App. – Amarillo 2013, no pet.) (The State did not establish defendant’s release date, forcing the jury to speculate and surmise the release date from the sentence and jail credit.)

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 7 “But, was it before the fifth anniversary of his release from confinement or parole following conviction of a felony? Well, he was convicted in 2009. And what did he tell you right on videotape? I’m on parole. I wouldn’t have a gun. You probably remember that. So if he says he was on parole, it’s certainly within five years of him being discharged from parole. Even if you do the math, conviction in 2009 with three years in prison, and then get out, on parole five years after that, we’re within the time frame any way you look at it. This is simply not an issue.”

– (R.R. 7, p. 89). And, it is notable that the State’s invitation in final argument for the jury to

“do the math” was remarkably similar to the argument made in Saldana v. State,

418 S.W.3d 722 (Tex. App. – Amarillo 2013). In Saldana, the State’s evidence

included a certified copy of a judgment showing appellant’s April 30, 2007 felony

conviction, and the resulting two-year state jail sentence. Evidence showed he was

arrested in possession of a firearm on September 19, 2012, some five years and five

months after his felony conviction, but the 2007 judgment provided no evidence of

the date appellant was released from confinement after the conviction. Neither did

the record contain any other evidence of the date of Saldana’s release. In finding the

evidence insufficient to convict appellant of the charged offense, the appellate court

noted that the prosecutor’s invitation to “do the math” and infer the date of

appellant’s release from confinement from the date of the 2007 conviction, the

length of sentence, and jail credit offered the jury an unworkable formula requiring

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 8 surmise and speculation. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App.

2007) (conclusion based on speculation not sufficient based on facts or evidence to

support a finding beyond reasonable doubt). The Court of Appeals here also invites

the jury to “do the math.” Its opinion invites speculation as to whether the jury even

read the pen packet, much less that it read those documents with a view to

determining the date a transfer occurred in order to calculate a time period on which

to base its judgment. The opinion of the Court of Appeals apparently assumes that

this jury did just that.

Conclusion

The evidence in this case, even when viewed in the light most favorable to the

verdict, is insufficient for a rational trier of fact to have found the essential elements

of the crime beyond a reasonable doubt. Neither the evidence adduced nor the

State’s argument asking the jury to infer the missing evidence sufficiently supported

the jury’s verdict. The Court of Appeals erred when it distinguished precedent in a

way which justified a verdict but which failed to acknowledge that the verdict was

not rationally derived from the evidence presented, and, in doing so, the Court

deviated from the norm in such a manner that its opinion cannot stand.

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 9 X. PRAYER

WHEREFORE, Mr. George prays that the Court of Criminal Appeals

reverse the judgment of the appellate court and order an acquittal, or, in the

alternative, enter such other orders as may be appropriate with its decision herein.

COPELAND LAW FIRM P.O. Box 399 Cedar Park, TX 78613 Mobil/Text: 512-897-8126 Fax: 512-215-8114 e-mail: ecopeland63@yahoo.com

By: /s/ Erika Copeland Erika Copeland State Bar No. 16075250

CERTIFICATE OF SERVICE AND OF COMPLIANCE WITH RULE 9

This is to certify that on November 10, 2015, a true and correct copy of the above and foregoing document was served on Bob Odom, Assistant District Attorney of Bell County, P.O. Box 540, Belton, Texas 76513, and the State Prosecuting Attorney, P.O. Box 12405, Capital Station, Austin, Texas 78711, in accordance with the Texas Rules of Appellate Procedure, and that the Petition for Discretionary Review of Appellant is in compliance with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must be included under Rule 9.4(i)(1) contains 1778 words.

/s/ Erika Copeland Erika Copeland

Petition for Discretionary Review Christopher Anthony George v. The State of Texas No. 03-14-00673-CR 10 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED OCTOBER 16, 2015

NO. 03-14-00673-CR

Christopher Anthony George, Appellant

v.

The State of Texas, Appellee

APPEAL FROM THE 264TH DISTRICT COURT OF BELL COUNTY BEFORE JUSTICES PURYEAR, PEMBERTON, AND BOURLAND AFFIRMED -- OPINION BY JUSTICE BOURLAND

This is an appeal from the judgment of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of

conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs

is made. TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 72519, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant, Christopher Anthony George, of unlawful possession

of a firearm by a felon. Appellant challenges the sufficiency of the evidence, contending that the State did not prove beyond a reasonable doubt that he possessed a firearm within five years of his

release from confinement following a prior felony conviction as required by the Texas Penal Code.

See Tex.

Penal Code § 46.04(a)(l). We will affirm the judgment of conviction.

BACKGROUND'

Appellant was arrested for driving with a suspended license on February I 0, 2014.

His vehicle was impounded, leading to the discovery of a gun and a loaded magazine inside.

1Because the parties are familiar with the facts of this case, its procedural history, and the evidence adduced at trial, we provide only a general overview here. We provide additional facts.in the opinion as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial. Appellant was subsequently tried for possession of a firearm by a felon under Texas Penal

Code § 46.04(a)( l). The indictment and jury charge alleged that appellant possessed a firearm on

Februa1y 1O, 2014, and that this date fell before the fifth am1iversaiy of his release from confinement

or parole for his prior felony conviction of robbery.

At trial, the arresting officer testified that appellant told him that he was on parole.

The State admitted a judgment and pen packet' indicating that appellant was convicted of robbery

on January 29, 2009 and transferred from the county jail to the penitentiary on February 18, 2009

to serve a three-year sentence. Neither appellant nor the State offered evidence of the specific date

of appellant's release. The jury convicted appellant, and this appeal followed.

LEGAL OVERVIE\V

Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 ( 1979); Rabb v. State, 434 S.W.3d 613,

616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a

conviction, we consider all the evidence in the light most favorable to the verdict to dete1mine

whether, based on the evidence and the reasonable inferences therefrom, any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Temple v. State,

390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson, 443 U.S. at 319; Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume that the trier of fact resolved conflicts

2 Appellant's pen packet was admitted without objection for the purpose of proving that he was convicted of robbery on January 29, 2009. However, the pen packet also indicates the date on which appellant was transferred to the Texas Department of Corrrections.

2 in the testimony, weighed the evidence, and drew reasonable inferences in a manner that suppo1is

the verdict. Jackson, 443 U.S. at 318; Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App.

2012). "Our role on appeal is restricted to guarding against the rare occurrence when a factfinder

does not act rationally." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2010).

Under the Texas Penal Code, a felon commits unlawful possession of a firearm "if

he possesses a firearm: (1) 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." Tex. Penal

Code § 46.04(a)(l).

DISCUSSION

On appeal, appellant does not contest the evidence showing that he possessed a

firearm on Febrna1y 10, 2014. Rather, he challenges the sufficiency of the evidence to establish

that this date fell within the five-year period enumerated in Section 46.04(a)(l). Appellant argues

that, because he was convicted for robbery more than five years before he was found with a

firearm, the State was required to establish the specific date of his release from confinement or

supervision. He cites to Fagen v. State in support of this argument. 362 S.W.3d 796, 800 (Tex.

App.-Texarkana 2012, pet. ref d) ("[T]he minimum period that a felon will be prohibited

from possessing a firearm . . . is five years from the date of conviction. The date of release

from confinement is necessary to determine the maximum length of this period specifically

when the period extends beyond five years from the date of conviction.") (quoting Tapps v. State,

257 S.W.3d 438, 445 (Tex. App.-Austin 2008), aff'd on other grounds, 294 S.W.3d 175 (Tex.

Crim. App. 2009)). Appellant

3 further contends that the State offered the pen packet as proof of conviction rather than proof .of

the release date, leaving the jury to infer appellant's release date by speculating on the meaning of

language in the pen packet and "do[ing) the math" based on the length of appellant's sentence. He

argues these are grounds for reversal, citing to Saldana v. State in which .the court reversed because

defendant possessed a firearm more than five years after his prior felony conviction and the State did

not establish defendant's release date, forcing the jury to speculate and surmise the release date

from the sentence and jail credit. 418 S.W.3d 722, 726 (Tex. App.-Amarillo 2013, no pet.). The

State argues that it proved that appellant possessed a firearm within the proscribed period by

establishing that he was transferred-and therefore confined on a date falling within that period,

citing to Gill v. State, 57 S.W. 3d 540 (Tex. App.-Waco 2001, no pet.) (affirming without proof of

release date where felon possessed firearm more than five years after prior conviction but less

then five years after initial incarceration).

Based on the record before us, we conclude that there was sufficient evidence to

support appellant's conviction. Viewing the evidence in the light most favorable to the verdict, we

conclude that a rational trier of fact could have determined that appellant was convicted on

January 29, 2009 and still confined on February 18, 2009 based on the judgment and the pen packet.

The State admitted evidence that appellant possessed a firearm on February 10, 2014. On appeal,

appellant does not explicitly challenge the fact that he possessed a firearm on that date. He bases

his appeal on the lack of a specific release date in the evidence. Although the State did not provide

evidence of appellant's specific release date, the pen packet indicates that appellant was transferred

to prison to serve his sentence for robbery on February 18, 2009. Consequently, his release date was

4 necessarily after February 18, 2009. Therefore, by possessing a firearm on February 10, 2014,

appellant possessed a firearm prior to the fifth anniversary of his release date. We do not read Fagen

and Tapps to demand an exact release date when the State can otherwise prove that a defendant

possessed a firearm within the proscribed period. The jury did not have to speculate to determine

that appellant could not have been released from confinement until some point after he was

confined. Gill, 57 S.W.3d at 546 ("Because [appellant] committed the instant offense less than five

years after he went to prison, he necessarily committed it within five years after he was released

from prison."). This case is, therefore, distinguishable from Fagen ,where "[i]t was entirely possible

that [appellant] could have been released . . . whether through pardon, clemency, or otherwise"

more than five years before he possessed a firearm.

The State provided sufficient evidence to establish that appellant possessed a firearm

within the proscribed period without requiring the jury to engage in speculation. We, therefore,

overrule appellant's sole point of error.

Having concluded that the evidence is sufficient to support appellant's conviction for

unlawful possession of a firearm by a felon, we affirm the trial court's judgment of conviction.

5 Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: October 16, 2015

Do Not Publish