Opinion issued July 16, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00857-CR ——————————— JESSE DIMAS ALVARADO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1410607
MEMORANDUM OPINION
Appellant, Jesse Dimas Alvarado, was found guilty by a jury of the offense
of unlawful possession of a firearm by a felon.1 The trial court assessed
Appellant’s punishment at five years in prison. In two issues on appeal, Appellant
1 See TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon 2011). asserts that the evidence was insufficient to support the judgment of conviction and
that he received ineffective assistance of counsel at trial.
We affirm.
Background
Appellant was convicted of the offense of sexual assault of a child on
August 12, 2003. He was sentenced to eight years in prison. Appellant was
released from prison on July 1, 2011.
On December 5, 2013, several law enforcement agencies, working together,
executed a search warrant on Appellant’s family home as part of a child
pornography investigation.2 The target of the investigation was Appellant’s
brother, Alfred. Appellant, Alfred, and their mother were at home when the
warrant was executed. Appellant was asleep in a bedroom.
During the search of the home, Houston Police Officer D. Nieto found a
firearm, a 9 millimeter pistol, on the shelf of the closet in the bedroom where
Appellant had been sleeping. The gun was in a nylon holster with the butt of the
gun facing outward. Men’s clothing was hanging in the closet. When the officer
asked whose bedroom it was, Appellant responded that it was his room.
Appellant’s wallet containing his driver’s license and his Texas Department of
Criminal Justice offender card was found in the bedroom. Drug paraphernalia—
2 The jury in this case was not informed of the purpose of the search warrant. 2 including various scales and different size plastic baggies of the type used to
package narcotics—was also recovered from the bedroom.
The police searched a car belonging to Appellant’s other brother, Rudy.
Inside the car, they found a large quantity of illegal drugs. Rudy was not at the
scene, but he was later arrested and convicted for illegal drug possession.
Appellant was arrested and later charged with the offense of unlawful
possession of a firearm by a felon. At trial, Officer Nieto testified that he was the
police officer who found the pistol on a shelf of the bedroom closet. He testified
that the pistol was not hidden or obstructed by anything on the shelf. He stated
anyone who entered the closet and looked up would have seen the butt of the
pistol.
R. Ackley, an investigator with the Harris County Sherriff’s Office, also
participated in the search of the home. Investigator Ackley testified that he saw the
pistol on the shelf of the bedroom closet. He stated that the shelf was at eye level,
about five feet high. He testified that the pistol was clearly visible on the shelf. He
stated that the pistol was in a holster, with the handle of the gun facing out and the
barrel of the gun pointing into the closet. He testified that the pistol was stuffed
between two shopping bags but the handle was sticking out far enough that he
could tell that it was a gun.
3 Photographs of the closet and of the shelf with the pistol were also admitted
into evidence. In the photographs, the pistol was laying on the shelf with nothing
around it. On cross-examination, Officer Nieto acknowledged that pistol had been
taken off the shelf and cleared of ammunition, replaced on the shelf and then
photographed. He did not agree that, when he initially found the pistol, it had been
stuffed between two shopping bags as Investigator Ackley had testified.
Appellant’s brother, Alfred, and Appellant’s mother testified for the defense.
Alfred stated that he had purchased the pistol about six months before the search
for home protection. Alfred explained that the bedroom where the pistol was
found had previously been his bedroom. Appellant moved into the bedroom where
the pistol was found approximately six months before the search, and Alfred had
moved to another bedroom.
Appellant’s mother, Juanita, testified that the items on the shelf where the
pistol was found belonged to her; however, the clothes hanging in the closet
belonged to Appellant. Juanita stated that she did not know that the pistol was in
the closet.
In closing argument, the defense asserted that the State’s photographs,
showing the pistol laying in plain view on the shelf did not accurately reflect where
the pistol had been in the closet when it was found by Officer Nieto. The defense
pointed to the testimony of Investigator Ackley indicating that the pistol had been
4 stuffed between two shopping bags. The defense relied on Alfred’s testimony
indicating that he had purchased the pistol and placed it in the closet.
In its closing argument, the State pointed out that both Officer Nieto and
Investigator Ackley testified that the pistol was in plain view in the closet. The
State also pointed out that, under the law, the jury did not need to find that
Appellant owned the pistol in order to find that he possessed it.
The jury found Appellant guilty of the offense of unlawful possession of a
firearm by a felon. Appellant elected to have the trial court assess punishment. At
the punishment hearing, the State reoffered the evidence from the guilt-innocence
phase, which was admitted for punishment purposes. The defense requested that
Appellant receive the minimum prison sentence of two years, and the State
requested that the trial court assess a six-year sentence. At the conclusion of the
hearing, the court sentenced Appellant to five years in prison. Appellant did not
file a motion for new trial.
Appellant now appeals, raising two issues.
Sufficiency of the Evidence
In his first issue, Appellant asserts that the evidence was insufficient to
support his conviction for the offense of unlawful possession of a firearm by a
felon. Specifically, Appellant claims that “the evidence does not affirmatively link
the pistol in question to appellant.”
5 A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single
sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App.
2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Pursuant to
the Jackson standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no
rational fact finder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
6 to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Elements of the Offense and Pertinent Legal Principles
To establish the offense of unlawful possession of a firearm by a felon, the
State must show that the defendant was previously convicted of a felony offense
and possessed a firearm after the conviction and before the fifth anniversary of the
person’s release from confinement. TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon
2011). Appellant does not dispute that he had a prior felony conviction or that it
has been less than five years since his release from prison; rather, he challenges
only the sufficiency of the evidence to prove that he possessed a firearm.
7 The Penal Code defines possession as “actual care, custody, control, or
management.” Id. § 1.07(a)(39) (Vernon Supp. 2014). A person commits a
possession offense only if he voluntarily possesses the prohibited item. Id.
§ 6.01(a) (Vernon 2011). Possession is voluntary if 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. Id. § 6.01(b).
We analyze cases involving possession of a firearm by a felon under the
sufficiency-of-the-evidence rules adopted for cases involving possession of a
controlled substance. See Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d). In such cases, the State is required to prove that a
defendant knew of the firearm’s existence and that he exercised actual care,
custody, control, or management over it. See id. at 38; see also TEX. PENAL CODE
ANN. § 1.07(a)(39). If the firearm is not found on the defendant’s person or is not
seen in the defendant’s exclusive care, custody, control, or management, the State
must offer additional, independent facts and circumstances that link the defendant
to the firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
2005).
Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d) (citing McGoldrick v. State, 682
S.W.2d 573, 578 (Tex. Crim. App. 1985)). When the accused is not in exclusive
8 possession of the place where the firearm is found, then additional, independent
facts and circumstances must affirmatively link the defendant to the firearm in
such a way that it can reasonably be concluded that the defendant had knowledge
of the contraband and exercised control over it. See Kibble v. State, 340 S.W.3d
14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Roberts v. State, 321
S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The
evidence, whether direct or circumstantial, must establish, to the requisite level of
confidence, that the accused’s connection with the firearm was more than just
fortuitous. See Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911
S.W.2d 744, 747 (Tex. Crim. App. 1995)).
A nonexclusive list of factors that may establish a link between a defendant
and a firearm found inside a house, which was not in the defendant’s 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)
9 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).
When deciding whether the evidence is sufficient to link a defendant to a
firearm, the fact finder is the exclusive judge of the credibility of the witnesses and
of the weight to be given to their testimony. See Poindexter, 153 S.W.3d at 406.
The jury is allowed to infer the defendant’s knowledge from his acts, conduct,
remarks, and from the surrounding circumstances. See Krause v. State, 243
S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
No formula of facts exists to dictate a finding of links sufficient to support
an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 831
(Tex. App.—Dallas 2003, no pet.). The link between the defendant and the
firearm need not be so strong that it excludes every other outstanding reasonable
hypothesis except the defendant’s guilt. See Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995). In sum, it is the logical force of the evidence, and not the
number of links, that supports a fact finder’s verdict. Evans v. State, 202 S.W.3d
158, 166 (Tex. Crim. App. 2006).
10 C. Analysis
To support his challenge that insufficient evidence was presented to link him
to the recovered handgun, Appellant points to evidence that it was his brother,
Alfred, who had purchased the pistol for home protection, and it was Alfred who
had placed the pistol in the closet when it had been Alfred’s bedroom. Appellant
also points out that a number of people lived in the house. However, the State was
not required to show that Appellant owned the pistol or that he exercised sole
control over it. See Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005,
pet. ref’d) (holding State is not required to prove defendant had exclusive
possession of firearm).
Appellant also asserts that the pistol was not in plain view. He claims that
he would only have seen it if he opened the closet door and looked at the pistol.
He points out that Investigator Ackley testified that the pistol was stuffed between
two bags on the shelf. Appellant further avers that the State presented no evidence
regarding a number of the link factors. He asserts he made no incriminating
statements or furtive gestures; he also did not attempt to flee.
Generally, Appellant correctly cites the record. However, the absence of
various affirmative links does not constitute evidence of innocence to be weighed
against the affirmative links that are present. James v. State, 264 S.W.3d 215, 219
(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Appellant’s analysis does not
11 appropriately view the evidence in the light most favorable to the verdict and
improperly discounts evidence linking him to the pistol recovered from the closet.
A factor that is of little or no value in one case may be the turning point in another.
See Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no
pet.).
The State offered evidence linking Appellant to the firearm. Appellant was
asleep in the bedroom where the closet was located when the search began.
Appellant told the police that it was his bedroom. His wallet, driver’s license, and
offender’s registration card were found in the bedroom. Alfred testified that it had
been Appellant’s bedroom for six months. Alfred also testified that he had
purchased the pistol about six months before the search.
The evidence further showed that it was Appellant’s clothes hanging in the
closet. Officer Nieto and Investigator Ackley testified that the pistol was in plain
view on the shelf. Although he stated that the pistol was stuffed between two bags,
Investigator Ackley testified that the pistol was visible, and it was identifiable as a
gun. Investigator Ackley also testified that the shelf was eye level, being about
five feet from the floor.
The circumstantial evidence outlined above, when viewed in combination,
constitutes sufficient evidence connecting Appellant to the firearm, not merely
fortuitous proximity. See Poindexter, 153 S.W.3d at 405–06. Although Appellant
12 cites link factors on which the State presented no evidence, as well as evidence that
weighs in his favor, “[i]t is the logical force of the circumstantial evidence, not the
number of links, that supports a jury’s verdict.” See Evans, 202 S.W.3d at 166.
Viewing the evidence in a light most favorable to the verdict, we conclude
that a rational fact finder could have found beyond a reasonable doubt that
Appellant possessed the firearm; that is, that he knew of the pistol’s existence and
exercised care, custody, control, or management over it.3 See Jackson, 443 U.S. at
3 As part of his sufficiency challenge, Appellant asserts that, even if the evidence was sufficient to link him to the firearm, he should nonetheless be acquitted because, under the narrow circumstances of this case, he had a state and a federal constitutional right to bear arms. See U.S. CONST. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”); TEX. CONST. art. I, § 23 (“Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”). Appellant points out that the evidence showed that his home was in a high crime area, and it had been the target of criminal activity in the past. Appellant claims that, under these circumstances, he had a constitutional right to possess a firearm to defend his home, despite his status as a felon. Appellant asserts that to hold the evidence sufficient to support his conviction would violate his state and federal rights to bear arms. Although woven into his sufficiency-of-the evidence challenge, Appellant’s complaint is an as-applied constitutional challenge to Penal Code section 46.04. See Adams v. State, 222 S.W.3d 37, 53 (Tex. App.—Austin 2005, pet. ref’d) (“Under an ‘as applied’ challenge, the challenging party contends that the statute, although generally constitutional, operates unconstitutionally as to him or her because of the challenging party’s particular circumstances . . . .”). Appellant did not raise his constitutionality challenges in the trial court. Thus, it has not been preserved for review in this Court. See Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim. App. 2008) (noting the “well-established requirement that appellant must preserve an ‘as applied’ constitutional challenge by raising it at trial”); see also Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that facial challenge to constitutionality of statute is forfeitable right that is waived if defendant fails to raise it in trial court). 13 319, 99 S. Ct. at 2789; Jones, 338 S.W.3d at 743. We hold that the evidence is
sufficient to support the judgment of conviction for the offense of unlawful
possession of a firearm by a felon.
We overrule Appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, Appellant asserts that he received ineffective assistance
of counsel at trial.
A. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must
show the following: (1) counsel’s performance fell below an objective standard of
reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,
the result would have been different. See Strickland v. Washington, 466 U.S. 668,
687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d
98, 101 (Tex. Crim. App. 2005). The first Strickland prong requires an appellant
to overcome the strong presumption that counsel’s performance falls within a wide
range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The
second Strickland prong requires an appellant to show that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different. See id. at 102. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome. See id.
14 An appellant has the burden to establish both prongs by a preponderance of
the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
A failure to show either (1) deficient performance or (2) sufficient prejudice
defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009); Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d).
B. Analysis
Appellant asserts that defense counsel’s performance at trial was deficient
because counsel did not object to police and prison records contained in State’s
Exhibit 4, business records from the Texas Department of Criminal Justice, and in
State’s Exhibits 27 and 27A, Appellant’s pen packets. The State offered these
documents into evidence to prove Appellant’s prior felony conviction for sexual
assault and to show Appellant’s release date from prison, both relevant to proving
elements of the instant offense of unlawful possession of a firearm by a felon.
Appellant complains that counsel should have objected to the portions of these
exhibits revealing the following: (1) disturbing allegations related to the sexual-
assault count for which Appellant was convicted; (2) details of a second count of
sexual-assault that was abandoned by the State; (3) misconduct by Appellant while
he was in prison; (4) the fact that Appellant is a registered sex offender; (5)
15 notations indicating that Appellant had been arrested seven times for other offenses
and had used illegal drugs.
Normally, counsel is afforded an opportunity to explain his actions before
being condemned as unprofessional or incompetent, such as with a hearing on a
motion for new trial or with the filing of an affidavit. See Bone v. State, 77 S.W.3d
828, 836 (Tex. Crim. App. 2002); Anderson v. State, 193 S.W.3d 34, 39 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). Here, Appellant did not file a motion
for new trial, and the record is otherwise devoid of any explanation regarding
counsel’s reasons or strategy for not objecting to the complained-of exhibits.
Appellant asserts that there could be “no imaginable trial strategy” to justify the
lack of objection. We disagree.
The allegedly objectionable information was not contained in testimony
heard by the jury; rather, it was contained in documentary evidence, part of which
was admissible to prove elements of the instant offense. It is possible that trial
counsel strategically choose not to object to the complained-of portions to avoid
drawing the jury’s attention to the information. See Bollinger v. State, 224 S.W.3d
768, 781 (Tex. App.—Eastland 2007, pet. ref’d) (observing that counsel may
choose not to object to evidence because “an objection might draw unwanted
attention to a particular issue”); Cooper v. State, 788 S.W.2d 612, 618 (Tex.
App.—Houston [1st Dist.] 1990, pet. ref’d) (overruling ineffective-assistance issue
16 when objection to allegedly inadmissible testimony would have likely focused
jury’s attention on fact that was unfavorable to defendant).
In any event, the record is silent regarding trial counsel’s strategy and his
reasons for not objecting to this evidence. Appellant has failed to overcome the
presumption that trial counsel’s actions were sound trial strategy. See Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see also Warren v. State, 377
S.W.3d 9, 20 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (stating appellate
court, in absence of evidence of evidence of counsel’s reasons, will assume
strategic motivation for counsel’s failure to object). We conclude Appellant has
not shown counsel’s performance fell below an objective standard of
reasonableness. See State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App.
2008); Bone, 11 S.W.3d at 834.
Moreover, Appellant has not established the second Strickland prong.
Appellant does not point to any place in the record where the State referenced or
otherwise highlighted the complained-of evidence. The primary issue at the guilt-
innocence stage was whether Appellant possessed the pistol. That was the focus of
the State’s evidence and its argument.
The State did reoffer all of its evidence at the punishment phase of trial;
however, it did not specifically mention the complained-of evidence during the
17 punishment phase. Rather, the State pointed to the evidence showing what had
been discovered during the search of Appellant’s family home.
In its closing statement, the State acknowledged that Appellant should not
receive the maximum ten-year sentence by requesting the trial court to assess a six-
year sentence. The defense requested the minimum two-year sentence, pointing
out that the instant offense involved no victim or property damage. The trial court
assessed Appellant’s punishment to be five years in prison.
We conclude that Appellant has not demonstrated a reasonable probability
that the result of the proceedings would have been different but for counsel’s
failure to object. We hold that appellant has failed to show, by a preponderance of
the evidence, that he received ineffective assistance of counsel at trial. See
Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068.
We overrule Appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b). 18