Powell, Melvin Danyeal v. State

Opinion issued June 26, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00741-CR

MELVIN DANYEAL POWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 912360

O P I N I O N

A jury convicted appellant, Melvin Danyeal Powell, of possession of a firearm

by a felon, and the trial court assessed punishment at two years in prison. We

determine whether the evidence was legally and factually sufficient to show that

appellant knowingly possessed the firearm. We affirm.

Facts

At about 1:00 a.m. on November 17, 2002, Houston Police Department

(“HPD”) Officer Sightsinger noticed a suspicious car parked in a car wash. After

HPD Officer Newman arrived a few minutes later, the officers approached the car.

They noticed appellant lying in the driver’s seat and another man lying in the

passenger’s seat. Both of the two occupants were extremely intoxicated. The officers

arrested the men for public intoxication. While conducting an inventory of the car,

Officer Sightsinger found a shotgun and three shotgun shell rounds in the car’s trunk.

When Officer Newman asked Officer Sightsinger to determine whether the shotgun

was stolen, appellant told the officers that the shotgun was not stolen, that he had

bought it from a friend, and that the recovered bullets did not fit the gun’s chamber.

In contrast, at trial, appellant testified that he had not been intoxicated and did

not make the statement to the officers about the shotgun and the bullets. Appellant

and his wife testified that appellant’s sister owned both the car and the shotgun; that,

when they had borrowed the car on the afternoon before appellant was arrested, they

did not check it for weapons or know that a shotgun was in the trunk; and that

appellant did not own any weapons. Officer Newman checked the car’s registration,

which showed ownership in a woman’s name, not in appellant’s.

Sufficiency of the Evidence

In four points of error, appellant contends that the evidence was legally and

factually insufficient to prove that he knowingly possessed the shotgun, specifically,

to show that he (1) exercised care, custody, or control over the shotgun or (2)

possessed the shotgun long enough to have permitted him to terminate his control

over it.

1. The Standard of Review

In our legal-sufficiency review, we view the evidence in the light most

favorable to the verdict and ask whether any rational fact finder could have found the

crime’s essential elements beyond a reasonable doubt. Johnson v. State , 23 S.W. 3d

1, 11 (Tex. Crim. App. 2000). In our factual-sufficiency review, we examine all of

the evidence neutrally and ask whether proof of guilt is so obviously weak as to

undermine confidence in the jury’s determination or so greatly outweighed by

contrary proof as to indicate that a manifest injustice has occurred. See Zuliani v.

State , 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003 ). We must consider the most

important evidence that the appellant claims undermines the jury’s verdict. Sims v.

State , 99 S.W.3d 600, 603-04 (Tex. Crim. App. 2003). The factfinder is the sole

judge of the weight and credibility of witness testimony . Johnson , 23 S.W.3d at 7 .

2. The Law

The indictment alleged that appellant had committed the offense of possession

of a firearm by a felon pursuant to Penal Code section 46.04(a)(1). See Tex. Pen.

Code Ann . § 46.04(a)(1) (Vernon 2003). Accordingly, to establish that appellant

unlawfully possessed a firearm, the State had to prove that appellant (1) had been

convicted of a felony offense and (2) possessed the firearm within the five-year

anniversary of his release either from confinement following conviction or from

supervision under community supervision, parole, or mandatory supervision,

whichever date was later. See id. ; Hawkins v. State , 89 S.W.3d 674, 677 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d). Appellant stipulated to all elements of

the offense except for possession.

“‘Possession’ means actual care, custody, control, or management.” See Tex.

Pen. Code Ann . § 1.07(a)(39) (Vernon 2003). A person commits a possession

offense only if he voluntarily possesses the prohibited item. See id. § 6.01(a) (Vernon

2003). “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.” Id. § 6.01(b). When a defendant’s possession

of contraband is not exclusive, the State may prove knowing possession by evidence

affirmatively linking the defendant to the contraband. Brown v. State , 911 S.W.2d

744, 747 (Tex. Crim. App. 1995); Hawkins , 89 S.W.3d at 677 (applying same to

offense of possession of firearm by felon). An affirmative link may be established

through direct or circumstantial evidence. Brown , 911 S.W.2d at 747 . Some non-exhaustive factors that may affect the determination of an affirmative link include

whether the contraband was (1) in a car driven by the accused, (2) in a place owned

by the accused, (3) conveniently accessible to the accused, (4) in plain view, or (5)

found in an enclosed space. Corpus v. State , 30 S.W.3d 35, 38 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d.); Gilbert v. State , 874 S.W.2d 290, 298 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d.) . Courts have also considered an

accused’s affirmative statement connecting him to the contraband. See Gilbert , 874

S.W.2d at 298 .

3. The Sufficiency of the Evidence Showing that Appellant Exercised Care,

Custody, Control, or Management Over the Shotgun

In points of error one and two, appellant argues that the evidence is legally and

factually insufficient to show that he knowingly possessed the shotgun because there

was no or insufficient evidence that he exercised care, custody, or control over it.

See Tex. Pen. Code Ann. §§ 1.07(a)(39), 6.01(a), (b).

The evidence viewed in the light most favorable to the verdict shows that

appellant was the driver of the vehicle in which the shotgun was found. When the

officers were discussing whether the shotgun was stolen, appellant volunteered

information about the shotgun, rather than expressing surprise that the officers had

found a shotgun in the trunk in the first place.

Moreover, appellant admitted that he

had purchased the shotgun from a friend, and, although the shotgun and bullets were

in the trunk, that he knew that the bullets would not fit into the shotgun’s chamber.

A rational jury could have concluded that this evidence affirmatively linked appellant

to the shotgun and thus showed circumstantially that he knowingly obtained or

received the shotgun, i.e. , that he knowingly exercised care, custody, control, or

management over it. See Tex. Pen. Code Ann. §§ 1.07(a)(39), 6.01(b); Gilbert , 874

S.W.2d at 298 (listing among factors possibly linking accused to contraband that

accused drove vehicle in which contraband was found or made affirmative statements

connecting self to contraband). Therefore, we hold that the evidence is legally

sufficient to show knowing possession.

We overrule point of error one.

To support his claim that the evidence is factually insufficient to show that he

possessed the shotgun knowingly, appellant relies on the undisputed facts that he did

not own the vehicle and that he was never seen directly exercising control over the

shotgun. We cannot say that this evidence greatly outweighs the contrary evidence

set out above or makes the verdict manifestly unjust. Additionally, the fact that a

person other than the accused owns the vehicle in which both the accused and the

contraband are found does not necessarily preclude the accused from being a or the

possessor of the contraband. See Villegas v. State , 871 S.W.2d 894, 896 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d) (“The control over the contraband need

not be exclusive, but can be jointly exercised by more than one person. When the

accused is not in exclusive control of the place where the contraband is found, the

State must show additional affirmative links between the accused and the

contraband.”) (citation omitted). Finally, possession could be shown circumstantially

and did not have to be demonstrated by evidence that appellant exercised direct care,

custody, control, or management over the shotgun. See Brown , 911 S.W.2d at 747 .

Therefore, we hold that the evidence is factually sufficient to show knowing

possession.

We overrule point of error two.

4. The Sufficiency of the Evidence Showing that Appellant Controlled the

Shotgun Long Enough to Have Terminated His Control Over It

In points of error three and four, appellant argues that the evidence is legally

and factually insufficient to show that he knowingly possessed the shotgun because

there was no evidence that appellant had control over the shotgun long enough to

have terminated his control over it. See Tex. Pen. Code Ann. § 6.01(b).

Section 6.01(b) allows the State to prove knowing possession by showing

either that an accused knowingly obtained or received the item or that he controlled

the item long enough to terminate his control over it. See id. § 6.01(b). The jury

charge instructed similarly, tracking the disjunctive language of section 6.01(b). We

have already held that there was legally and factually sufficient evidence that

appellant knowingly obtained or received the shotgun, i.e. , that he knowingly

exercised care, custody, control, or management over the shotgun. See id. §§

1.07(a)(39), 6.01(b). Therefore, whether the State also produced sufficient evidence

of the alternate means to show knowing possession under section 6.01(b)—sufficient

length of control—would not have affected the verdict and is thus immaterial. See

Rabbani v. State , 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (“[W]hen the jury

returns a general verdict and the evidence is sufficient to support a guilty finding

under any of the allegations submitted, the verdict will be upheld.”).

Accordingly, we need not address points of error three and four.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Hanks.

Publish. See Tex. R. App. P. 47.2(b).