Kerwin Durvin Nero v. State

• Court: Court of Appeals of Texas
• Decided: November 10, 2011
• Docket: 02-10-00083-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00083-CR

KERWIN DURVIN NERO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

I. INTRODUCTION

The trial court convicted Appellant Kerwin Durvin Nero of unlawful

possession of a firearm and sentenced him to eight years’ confinement. In four

points, Nero, pro se, argues that the evidence is legally and factually insufficient

to support his conviction, that the trial court erred by failing to suppress evidence,

and that his trial counsel was ineffective. We will affirm.

1 See Tex. R. App. P. 47.4. II. BACKGROUND

On February 23, 2009, Officer Nicholas Maddock responded to a call

about a person with a weapon. Several witnesses informed Officer Maddock that

Nero was involved in the alleged altercation, and they provided a description of

his vehicle. Officer Maddock broadcast a description of the vehicle, and Officer

Caleb Ferren located Nero driving his vehicle and initiated a stop. Officer Ferren

ordered Nero out of the vehicle, performed a ―quick pat-down for weapons,‖ and

discovered a holster located on the inside of Nero’s waistband. Officer Ferren

removed the holster and asked Nero where the gun was located. Nero

responded that he did not have a gun.

Meanwhile, Officer Michael Williams had arrived at the scene and ordered

Nero’s mother, Jacqueline, out of the passenger side of Nero’s vehicle. Officer

Williams observed a purse lying in plain view and ―wide open‖ on the passenger-

side floorboard and a 9 mm semi-automatic handgun inside of the purse. He

retrieved the loaded gun. Officer Ferren asked Nero if the gun belonged to him,

and Nero responded that ―he didn’t have it on him‖ but also acknowledged that

―he had it on him earlier in the day‖ at his house. Jacqueline denied owning the

gun and said that she knew nothing about it. Regarding the original call, officers

―decided the elements of an aggravated assault were not present,‖ but Nero was

arrested and later indicted for unlawfully possessing the firearm.

III. SUFFICIENCY OF THE EVIDENCE

2 In his first point, Nero argues that the evidence is legally and factually

insufficient to support his conviction because he was not the sole occupant of his

vehicle, the gun was not registered to him, and his fingerprints were not found on

the gun. In his second point, Nero argues that ―[t]he State failed to prove each

and every element in the indictment,‖ particularly, the possession element. We

will address Nero’s evidentiary challenges together.

The court of criminal appeals has held that there is no meaningful

distinction between the legal sufficiency standard and the factual sufficiency

standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).

The Jackson standard is the ―only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.‖

Id.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

3 at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. Thus, when performing

an evidentiary sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we

Adetermine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.

2007). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

To establish the offense of unlawful possession of a firearm, as pleaded,

the State was required to show that Nero was previously convicted of a felony

offense and that he intentionally or knowingly possessed a firearm after the

conviction and before the fifth anniversary of his release from confinement. See

Tex. Penal Code Ann. § 46.04(a)(1) (West Supp. 2011). Nero does not dispute

the prior felony conviction. Instead, he challenges the possession element of the

offense.

―Possession‖ is defined as ―actual care, custody, control, or management.‖

Id. § 1.07(a)(39) (West 2011). A person commits a possession offense only if he

voluntarily possesses the prohibited item. Id. § 6.01(a) (West 2011). Possession

is voluntary if the possessor knowingly obtains or receives the thing possessed

4 or is aware of his control of the thing for a sufficient time to permit him to

terminate his control. Id. § 6.01(b).

If the firearm is not found on the accused’s person or is not in the exclusive

possession of the accused, the evidence must link the accused to the firearm.

Sutton v. State, 328 S.W.3d 73, 76 (Tex. App.—Fort Worth 2010, no pet.); Bates

v. State, 155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). The purpose

of linking the accused to the firearm, whether by direct or circumstantial

evidence, is to protect innocent bystanders from conviction based solely on their

fortuitous proximity to the firearm. See Poindexter v. State, 153 S.W.3d 402, 406

(Tex. Crim. App. 2005); Villarreal v. State, Nos. 02-07-00329-CR, 02-07-00330-

CR, 2009 WL 671042, at *1 (Tex. App.—Fort Worth Mar. 12, 2009, pet. ref’d)

(mem. op., not designated for publication) (stating that the links doctrine also

applies to possession of firearms). Factors that may link the accused to the

firearm include whether the firearm was in plain view, whether the accused was

the owner of the vehicle in which the firearm was found, whether the accused

was the driver of the vehicle in which the firearm was found, whether the accused

was in close proximity and had ready access to the firearm, whether the place

where the firearm was found was enclosed, and whether affirmative statements

connect the accused to the firearm, including incriminating statements made by

the accused when arrested. Sutton, 328 S.W.3d at 77; Bates, 155 S.W.3d at

216–17. It is not the number of factors that determines whether the elements of

5 the offense have been established but the logical force of the factors. Sutton,

328 S.W.3d at 77.

The record contains ample evidence linking Nero to the firearm discovered

in Jacqueline’s purse. Specifically, Officer Maddock responded to a person-with-

a-weapon call, and witnesses initially implicated Nero in the alleged

confrontation. When Officer Ferren searched Nero, he discovered a holster

attached to Nero’s waistband. Nero claimed that he owned the holster, and

Officer Ferren testified that the handgun fit ―perfectly‖ inside of the holster.

Officer Williams discovered the loaded handgun not only in Nero’s vehicle, but in

Jacqueline’s purse, which was ―wide open,‖ located on the passenger-side

floorboard, and within the reach of the driver, Nero. When Officer Ferren asked

Nero if the handgun belonged to him, Nero acknowledged that ―he had it on him

earlier in the day‖ at his house.

Jacqueline testified that Nero drove her to a house on February 23, 2009,

to visit Nero’s children—her grandchildren; that she left her purse in Nero’s

vehicle during the fifteen- to twenty-minute visit; that there was an altercation at

that location; that she did not bring a handgun in her purse that day; and, in fact,

that she does not even own a handgun. Jacqueline confirmed that her purse

was not zipped when she returned to Nero’s vehicle after visiting her

grandchildren, that she did not check her purse between the time that she left the

house where she visited her grandchildren and the time that the police stopped

Nero’s vehicle, that she told one of the officers that there was no handgun in her

6 purse when she arrived at the house, and that the first time she learned of any

handgun at all was when Officer Williams discovered it in her purse.

Nero is correct that he was not the sole occupant of his vehicle and that his

fingerprints were not found on the handgun, but that does not end our

possession inquiry. Viewing the evidence in the light most favorable to the

verdict, and giving full play to the responsibility of the trial court to weigh the

evidence and to draw reasonable inferences from basic facts to ultimate facts,

the trial court could have found beyond a reasonable doubt that Nero

intentionally or knowingly exercised actual care, custody, control, or management

of the handgun that authorities discovered in Jacqueline’s purse in Nero’s

vehicle. Accordingly, we hold that the evidence is sufficient to support Nero’s

conviction for unlawful possession of a firearm. We overrule Nero’s first and

second points.

IV. MOTION TO SUPPRESS

In his third point, Nero appears to argue that because police unlawfully

frisked or arrested him, the trial court erred by denying his motion to suppress the

handgun discovered in his vehicle.

To preserve error about the illegal seizure of evidence, a defendant must

either file a motion to suppress and obtain a ruling on the motion or timely object

when the State offers the evidence at trial. See Tex. R. App. P. 33.1(a); Tex. R.

Evid. 103(a)(1); Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977);

Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. ref’d).

7 In this case, Nero neither filed a motion to suppress any evidence nor

asserted an objection when the State offered the handgun into evidence.

Consequently, Nero failed to preserve this point for appellate review. We

overrule Nero’s third point.

V. INEFFECTIVE ASSISTANCE

In his fourth point, Nero argues that his trial counsel rendered ineffective

assistance because he failed to investigate ―nonstatutory mitigating evidence,‖

failed to properly object to certain evidence, failed to call a witness, and failed to

present mitigating evidence at the punishment phase.

To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999).

In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

8 time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63. A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

―any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

This case demonstrates the ―inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.‖ See Patterson v. State, 46

S.W.3d 294, 306 (Tex. App.—Fort Worth 2001, no pet.). Nero filed a motion for

new trial, but he did not specifically argue that his trial counsel was ineffective,

and there is no record of a hearing at which any alleged ineffectiveness was

explored. The record does not reflect trial counsel’s reasons for doing or not

doing the things of which Nero complains, and we will not speculate about trial

9 counsel’s complained-of acts or omissions. Further, we cannot conclude that this

is one of those rare cases in which the challenged conduct was ―so outrageous

that no competent attorney would have engaged in it.‖ See Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003)).

Accordingly, based on this record, and in light of the strong presumption of

reasonable professional assistance by defense counsel, we cannot conclude that

Nero met his burden of showing by a preponderance of the evidence that his trial

counsel’s representation fell below the standard of prevailing professional norms.

See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65; Salinas, 163 S.W.3d

at 740; Mallett, 65 S.W.3d at 62–63. We overrule Nero’s fourth point.

VI. CONCLUSION

Having overruled all four of Nero’s points, we affirm the trial court’s

judgment.

BILL MEIER JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 10, 2011