Rodnirich Luke v. State

• Court: Court of Appeals of Texas
• Decided: October 19, 2018
• Docket: 07-17-00199-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00199-CR

RODNIRICH LUKE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2017-411,657, Honorable John J. “Trey” McClendon III, Presiding

October 19, 2018

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Appellant Rodnirich Luke appeals from his conviction by jury of the offense of

unlawful possession of a firearm1 and the resulting court-imposed sentence of forty-five

1 TEX. PENAL CODE ANN. § 46.04(a) (West 2018). years of imprisonment.2 On appeal, appellant contends the evidence was insufficient to

support his conviction. We will affirm.

Background

Appellant’s prosecution followed several vehicle burglaries that occurred within a

ten-city-block area of Lubbock over a particular night in the fall of 2016. The victims of

the burglaries reported to police items stolen from their vehicles overnight. During their

investigation, police linked to the crimes a gold Hyundai Elantra with a dent on the back

passenger-side bumper. Officers saw appellant driving a car matching that description

the day after the burglaries. Officers attempted to stop appellant. Two other men were

also in the car. One was seated in the front passenger seat and the other, in the back.

Appellant evaded police and then jumped out of the car while it was still in motion and

ran. Police detained and arrested appellant. The other two men did not flee and also

were arrested.

Among the items officers found in the Hyundai was an unloaded firearm, a Colt

Delta Elite, belonging to Johnny Davis, one of the car-burglary victims. The pistol was

found in a laptop bag, along with a laptop computer, in the rear driver’s side floorboard.

The laptop bag and computer belonged to another of the burglary victims. Credit cards

belonging to Davis were found in a Walmart bag in the driver’s side floorboard. The State

also presented evidence, including surveillance videos from Walmart and other stores,

2This is a third-degree felony offense. Appellant pled “true” to two enhancement provisions in the indictment, elevating his punishment to that of a first-degree felony. TEX. PENAL CODE ANN. §§ 12.34; 12.42 (West 2018).

2 showing appellant purchased items using other credit cards stolen during the burglaries.

Appellant made his first purchase with one of the stolen cards at 6:12 on the morning

after the burglaries. The purchased items were also found in the Hyundai.

Analysis

From the background we have related, appellant was charged with unlawful

possession of a firearm by a felon. In this Court, he challenges only the State’s evidence

supporting his knowing and intentional possession of the firearm found in the laptop bag

in the Hyundai he was driving.

We review the sufficiency of the evidence under the standard set forth in Jackson

v. Virginia. 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.

Crim. App. 2010) (plurality op.). Under that standard, a reviewing court must consider 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 crime beyond a reasonable

doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citations omitted).

The jury is the sole judge of the weight and credibility of the evidence and we

presume the factfinder resolved any conflicting inferences in favor of the verdict and defer

to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The jury

is entitled to draw reasonable inferences from basic facts to ultimate facts. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We determine whether, based on the

evidence and reasonable inferences drawn therefrom, a rational juror could have found

the essential elements of the crime beyond a reasonable doubt. Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010).

3 A person who has been convicted of a felony commits an offense of unlawful

possession of a firearm if he possesses a firearm after conviction and before the fifth

anniversary of his release from confinement following conviction of the felony or his

release from supervision under community supervision, parole, or mandatory supervision,

whichever date is later or, after the five-year period, at any location other than the

premises at which the person lives. TEX. PENAL CODE ANN. § 46.04(a). “Possession

means actual care, custody, control, or management.” TEX. PENAL CODE ANN.

§ 1.07(a)(39). A person commits a possession offense only if he voluntarily possesses

the proscribed item. TEX. PENAL CODE ANN. § 6.01(a). “Possession is a voluntary act 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.” TEX. PENAL CODE

ANN. § 6.01(b).

In cases involving unlawful possession of a firearm by a felon, we “analyze the

sufficiency of the evidence under the rules adopted for determining the sufficiency of the

evidence in cases of unlawful possession of a controlled substance.” Hodges v. State,

No. 05-16-00647-CR, 2017 Tex. App. LEXIS 5109, at *7 (Tex. App.—Dallas June 1,

2017, pet. ref’d) (mem. op., not designated for publication) (citations omitted). Thus, the

State must prove the accused exercised actual care, control, or custody of the firearm;

he was conscious of his connection with it; and he possessed the firearm knowingly or

intentionally. Id. (citation omitted). “Intent can be inferred from the acts, words, and

conduct of the accused.” Jones v. State, Nos. 03-17-00720-00721-CR, 2018 Tex. App.

LEXIS 3869, at *14 (Tex. App.—Austin May 31, 2018, pet. ref’d) (mem. op., not

designated for publication) (citation omitted). Direct or circumstantial evidence may be

4 used to prove possession but appellant’s connection with the firearm must be more than

“merely fortuitous.” Davis v. State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002,

pet. ref’d).

The State was not required to show appellant had exclusive possession of the

firearm because joint possession is sufficient to sustain a conviction. Smith v. State, 176

S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d) (citing Cude v. State, 716 S.W.2d

46, 47 (Tex. Crim. App. 1986) (possession of controlled substance)). When there is no

evidence the actor was in exclusive control of the place where the firearm was found, as

was the situation here, the State must offer additional, independent facts and

circumstances affirmatively linking him to the firearm. Id. (citing Poindexter v. State, 153

S.W.3d 402, 406 (Tex. Crim. App. 2005) (involving possession of controlled substance));

Grantham v. State, 116 S.W.3d 136, 143 (Tex. App.—Tyler, pet. ref’d) (involving

possession of firearms). “[E]vidence which affirmatively links [a defendant] to [the firearm]

suffices for proof that he possessed it knowingly.” Brown v. State, 911 S.W.2d 744, 747

(Tex. Crim. App. 1995).

Courts have identified several factors that may be considered to determine

whether a defendant is sufficiently linked to a firearm found in a vehicle. See James v.

State, 264 S.W.3d 215, 218-19 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citations

omitted); Auvenshine v. State, Nos. 07-15-00251-CR, 07-15-00253-CR, 07-15-00254-

CR, 07-15-00255-CR, 2016 Tex. App. LEXIS 3392, at *11 (Tex. App.—Amarillo Mar. 31,

2016, no pet.) (mem. op., not designated for publication) (citations omitted) (both setting

forth factors). No set formula of facts exists, however, to dictate a finding of links sufficient

to support an inference of knowing possession of contraband. Greer v. State, 436 S.W.3d

5 1, 5 (Tex. App.—Waco 2014, no pet.) (citation omitted). It is the “logical force” of the

factors, not the number of factors present, that determines whether the elements of the

offense have been established. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.

2006); Favela v. State, No. 03-12-00307-CR, 2013 Tex. App. LEXIS 5691, at *9 (Tex.

App.—Austin May 8, 2013, pet. ref’d) (mem. op., not designated for publication) (citation

omitted). And, “the absence of certain links is not evidence of innocence to be weighed

against the links present.” Williams v. State, 313 S.W.3d 393, 398 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d).

Viewing the evidence in the light most favorable to the jury’s verdict, and applying

the requisite links analysis, we find the evidence sufficient. While the record contains no

affirmative direct evidence that appellant was the person who stole Davis’s pistol or that

he was the person who placed the firearm in the laptop bag, the record does contain

several significant facts linking him to the firearm and establishing he knowingly

possessed it.

In a case we find helpful, the Court of Criminal Appeals evaluated the sufficiency

of evidence the defendant possessed a firearm after guns were stolen in a home burglary.

Rollerson v. State, 227 S.W.3d 718, 726-27 (Tex. Crim. App. 2007). He had been found

in possession of coins stolen in the same burglary, and the court held that evidence,

coupled with other evidence including the fact the stolen guns had been in a back room

of his mother’s house, was sufficient to sustain his conviction for stealing the guns during

the same burglary, if only as a party. Id. at 727.

6 The court of appeals had held that the same evidence necessarily proved that he

had “possessed a firearm at one point.” The high court disagreed with that conclusion,

stating, “In theory, it might be possible that [the defendant] never actually touched [a]

handgun. If other persons in fact participated in the burglary of [the] home, it is possible

that they, rather than [the defendant] handled the guns and carried [the] handgun to [the

defendant’s] mother’s home and deposited it [there].” Id. at 727. The court concluded

that the defendant’s possible party liability to the theft of the firearm could not sustain his

conviction for felon in possession of a firearm, “absent evidence that he knew of the

existence of the firearm and exercised control over it.” Id.

Continuing its analysis, the court stated, “While there is no affirmative evidence

that appellant physically placed the guns in the back room of his mother’s house, there is

no affirmative evidence that any of the other possible suspects did either. And those guns

were in appellant’s mother’s house, not the home of any other possible suspect.” The

court went on to hold that substantial circumstantial evidence affirmatively linked

appellant to the stolen guns, sufficiently supporting a finding he knew of the existence of

the firearms stolen from the home and exercised control over at least one of them. Id.

Although no burglary conviction is involved in the case before us, we find the

court’s analysis of the firearm possession charge in Rollerson instructive. As with the

coins in Rollerson, the evidence here shows appellant in possession of Davis’s credit

cards stolen from the same car as the pistol. Someone removed the pistol from Davis’s

car and someone put it in the laptop bag taken from another car. Similar to the

circumstance in Rollerson, it is possible in theory that one of appellant’s comrades in the

Hyundai, or some other person not present with them (we have no evidence how many

7 persons participated in the burglaries), handled the pistol without appellant’s knowledge

or control. And, favorable to appellant’s argument here, the pistol when found was

concealed in the laptop bag, allowing appellant to posit that he had no knowledge even

of its presence in the bag. On the other hand, unfavorable to appellant’s argument, the

pistol was located in the car appellant was driving,3 not at some other location like the

back room of someone’s home. And the laptop bag was located behind the driver’s seat.

But, we think most tellingly, the pistol was taken from Davis’s car, along with Davis’s credit

cards. And it is appellant, not any other possible suspect, who had Davis’s credit cards

in a Walmart bag at his feet in the driver’s side floorboard, and appellant, not any other

possible suspect, who attempted to use Davis’s card. We think the links connecting

appellant with the pistol are at least as strong as those present in Rollerson. See Favela,

2013 Tex. App. LEXIS 5691, at *9-10 (finding that although there was another passenger

in the car who might also have exercised control over the gun, appellant “had ready

access to it.”)

Lastly, we note appellant attempted to flee from police both by car and on foot,

indicating consciousness of guilt. The two men in the car with appellant did not attempt

to flee. Appellant led police on a foot pursuit that lasted nearly fifteen minutes. Police

officers, and a trained K-9, searched for appellant through alleys, backyards, and storage

sheds. Appellant was finally found under a travel trailer. See Favela, 2013 Tex. App.

LEXIS 5691, at *9-10 (appellant attempted to flee, “indicating consciousness of guilt”).

See Smith v. State, 118 S.W.3d 838, 843 (Tex. App.—Texarkana 2003, no pet.) (finding

jury could have concluded defendant’s flight from deputy indicated consciousness of

3 Appellant did not own the car. It belonged to the mother of the front passenger.

8 guilt). Appellant argues he had more than one reason to flee, specifically his possession

and use of the stolen credit cards. But the finder of fact was free to consider the evidence

of flight as a consciousness of guilt in determining the sufficiency of the evidence to

support the offense for which appellant was convicted, not some other offense. Clayton

v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).

Appellant also argues the State did not show any attempt to find fingerprints on

Davis’s vehicle or the gun even though the State’s first witness testified about fingerprints.

The law does not require that the State present fingerprint evidence to support a

conviction. See, e.g., Pena v. State, 441 S.W.3d 635, 641-42 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d). Appellant also cites Young v. State, 752 S.W.2d 137, 141 (Tex.

App.—Dallas 1988, pet. ref’d) in which the court concluded the cumulative force of all of

the incriminating circumstances excluded every other reasonable hypothesis. The State

did not have the burden to exclude every reasonable hypothesis other than appellant’s

guilt. Geesa v. State, 820 S.W.2d 154, 159-61 (Tex. Crim. App. 1991), overruled in part

on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). The “link

between the defendant and the contraband need not be so strong that it excludes every

other outstanding reasonable hypothesis except the defendant’s guilt.” Nwaogu v. State,

Nos. 01-11-00597-CR, 01-11-00598-CR, 2013 Tex. App. LEXIS 4588, at *21 (Tex.

App.—Houston [1st Dist.] Apr. 11, 2013, pet. ref’d) (citing Brown, 911 S.W.2d at 747).

For those reasons, we do not agree with appellant’s contentions.

Based on the evidence before it, we find the jury could have determined beyond a

reasonable doubt that appellant intentionally and knowingly possessed the firearm found

in the car he was driving.

9 We overrule appellant’s issue.

Conclusion

Having resolved appellant’s sole issue against him, we affirm the judgment of the

trial court.

James T. Campbell Justice

Do not publish.