Robert James v. State

Opinion issued January 24, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00496-CR

ROBERT JAMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1053833

O P I N I O N

Appellant, Robert James, appeals from a judgment convicting him for the

offense of being a felon in possession of a firearm for which he was sentenced to ten

years in prison and a $1,000 fine. See Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon

2007). Appellant pleaded not guilty and not true to a punishment enhancement

paragraph. The jury found appellant guilty and determined his sentence after it found

true the conviction used to enhance punishment. In three points of error, appellant

contends that the evidence is legally and factually insufficient, and that the trial court

erred by allowing the State to improperly cross-examine him. We conclude the

evidence is legally and factually sufficient and the challenge concerning the State’s

cross-examination does not warrant reversal of the conviction. We affirm the

judgment of the trial court .

Background

Houston Police Department Officers Shurbet and Rodriguez were working a

high crime area near the streets of Antoine and Tidwell on January 14, 2006 at about

7:55p.m. Officer Shurbet saw a blue Lincoln Town Car parked at an angle across a

handicapped parking space in a gas station parking lot. Officer Shurbet saw two

people, later identified as appellant and Douglas Brown, get into the Town Car. As

the Town Car drove from the parking lot, the officers’ computer revealed that the

plate on the Town Car was expired, and that it was registered to Brown, the driver.

The officers stopped the car for traffic violations after Officer Shurbet saw the car

change lanes without signaling and make a turn without signaling.

As Officer Shurbet approached the rear passenger door of the Town Car, which

was illuminated by the patrol car’s spotlight, he saw appellant in the passenger seat

leaning forward in the seat and looking over his left shoulder to watch Officer

Rodriguez approach on the driver’s side of the car. As Officer Shurbet reached the

passenger side door, he saw appellant’s right hand in a gesture that appeared as

though something was being placed beneath the seat. Officer Rodriguez also saw

appellant bending down.

Appellant and Brown got out of the car at the request of the officers. Officer

Shurbet asked appellant several times to place his hands on the car, but appellant did

not fully comply, only “halfway” placing his hands on the car. Each of the officers

saw appellant looking around in a manner that appeared as though he was looking for

a place to run.

After placing appellant in the patrol car for the safety of the officers, Officer

Shurbet returned to the Town Car, where he found a black revolver under the

passenger seat within inches of where appellant’s legs had been and within

appellant’s easy reach. The gun was loaded with six shells. Appellant was arrested

for possession of the weapon, and the driver was arrested for the traffic violations

because he had no identification. The gun was submitted for latent fingerprint

examination, which revealed one partial latent print that came from the cylinder of

the weapon, but the print had insufficient detail to make an identification.

At trial, appellant testified that on the evening of the traffic stop, he ran into

Brown at the gas station and got into Brown’s car to get a ride to a friend’s house that

was two blocks away. Realizing that he did not have a seatbelt on, appellant said that

he reached down to his lap, got the buckle and strapped on the belt. Appellant denied

reaching down to the floor. Appellant acknowledged that he was nervous and

looking around when he got out of the car at the officer’s request but denied that he

tried to run or resist arrest. Appellant explained that his nervous behavior was due

to his consumption of marijuana earlier in the day. Appellant denied possession of

the gun. Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence to establish felon in

possession of a firearm. Appellant does not challenge the evidence relating to his

prior conviction; rather, his challenge only concerns the affirmative links between

him and the weapon.

A. Affirmative Links

To establish unlawful possession of a firearm by a felon, the State must show

that the accused was previously convicted of a felony offense and possessed a firearm

after the conviction and before the fifth anniversary of his release from confinement

or from community supervision, parole, or mandatory supervision, whichever date is

later. Tex. Pen. Code Ann . § 46.04(a)(1); Hawkins v. State , 89 S.W.3d 67 4, 677

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) . 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. Pen.

Code Ann. § 6.01(b) (Vernon 2007); Hawkins , 89 S.W.3d at 677 .

If the firearm is not found on the defendant or is not in his exclusive

possession, the evidence must affirmatively link him to the firearm. Bates v. State ,

155 S.W.3d 212 , 216–17 (Tex. App.—Dallas 2004, no pet. ); see also Hawkins , 89

S.W.3d at 677 . The State may establish possession by proving an “affirmative link,”

which demonstrates that the defendant was conscious of his connection with the

weapon and knew what it was. Hawkins , 89 S.W.3d at 677. Factors that may

establish an affirmative link include whether: (1) the co ntraband was in plain view;

(2) the defendant was the owner of the car in which the contraband was found; (3) the

defendant was the driver of the car in which the contraband was found; (4) the

defendant was in close proximity and had ready access to the contraband; (5) the

contraband was found on the same side of the car as the defendant; (6) contraband

was found on the defendant; (7) the defendant attempted to flee; (8) conduct by the

defendant indicated a consciousness of guilt, including extreme nervousness or

furtive gestures; (9) the defendant had a special connection or relationship to the

contraband; (10) the place where the contraband was found was enclosed;

(11) occupants of the automobile gave conflicting statements about relevant matters;

and (12) affirmative statements connect the defendant to the contraband, including

incriminating statements made by the defendant when arrested. Bates , 155 S.W.3d

at 216–17; see also Hawkins , 89 S.W.3d at 677 ; 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). The evidence used to satisfy

these elements can be either direct or circumstantial. Hawkins , 89 S.W.3d at 677 .

The number of factors present is not as important as the logical force the factors have

in establishing the elements of the offense. Bates , 155 S.W.3d at 217 ; Hawkins , 89

S.W.3d at 677 . The absence of various affirmative links does not constitute evidence

of innocence to be weighed against the affirmative links present. Hernandez v. State ,

538 S.W.2d 127, 131 (Tex. Crim. App. 1976).

B. Legal Sufficiency

In his first issue, appellant contends that the evidence is legally insufficient to

show that he knowingly possessed the firearm.

In a legal-sufficiency review, we consider the entire trial record to determine

whether, viewing the evidence in the light most favorable to the verdict, a rational

jury could have found the accused guilty of all essential elements of th e offense

beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307 , 318–19, 99 S. Ct.

2781 , 2788–89 (1979); Vodochodsky v. State , 158 S.W.3d 502, 509 (Tex. Crim. App.

2005); McCleksy v. State , 224 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d). In conducting our review of the legal sufficiency of the evidence,

we do not reevaluate the weight and credibility of the evidence but ensure only that

the jury reached a rational decision. Muniz v. State , 851 S.W.2d 238, 246 (Tex. Crim.

App. 1993).

Appellant contends the evidence is insufficient to link him to the firearm

because no one saw him handle the gun; he testified it was not his gun; no matching

fingerprint was found on either the gun or the bullets; the gun was not in plain view;

he was only in the car for a short period of time; he did not possess other contraband;

he did not flee; he could have been moving around for reasons other than to push a

gun under the seat; he did not own the vehicle; and the place where the gun was

found was not enclosed.

Viewing the evidence in a light most favorable to the jury’s verdict, the record

shows appellant was in close proximity to the weapon, which was located within

inches of his legs and within easy reach. Other circumstances show that appellant

was nervously looking around in a manner that made the officers believe he was

going to attempt to flee. Further, appellant was seen gesturing as though he was

placing something under the seat. A rational jury could have found these

circumstances sufficient to show appellant’s knowing possession of the firearm. See

Nguyen v. State , 54 S.W.3d 49, 52 (Tex. App.—Texarkana 2001, pet. ref’d). We hold

that the evidence is legally sufficient to support the jury’s finding. We overrule

appellant’s first issue.

C. Factual Sufficiency of the Evidence

Appellant contends in his second issue that the evidence is factually

insufficient to establish that he knowingly possessed the firearm.

When conducting a factual-sufficiency review, we view all of the evidence in

a neutral light. Ladd v. State , 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will

set the verdict aside only if (1) the evidence is so weak that the verdict is clearly

wrong and manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App.

2000). Under the first prong of Johnson , we cannot conclude that a conviction is

“clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence

admitted, we would have voted to acquit had we been on the jury. Watson v. State ,

204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson ,

we cannot declare that a conflict in the evidence justifies a new trial simply because

we disagree with the jury’s resolution of that conflict. Id. Before finding that

evidence is factually insufficient to support a verdict under the second prong of

Johnson , we must be able to say, with some objective basis in the record, that the

great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In

conducting a factual-sufficiency review, we must also discuss the evidence that,

according to the appellant, most undermines the jury’s verdict. See Sims v. State , 99

S.W.3d 600, 603 (Tex. Crim. App. 2003).

A jury is in the best position to evaluate the credibility of witnesses, and we are

required to afford “due deference” to the jury’s determinations. Marshall v. State ,

210 S.W.3d 618, 625 (Tex. Crim. App. 2006). It is within the jury’s province to

determine witness credibility. See Cain v. State , 958 S.W.2d 404 , 408–09 (Tex.

Crim. App. 1997). Here, it was within the jury’s province to disbelieve appellant’s

testimony, including his denial that he possessed the gun and that his nervousness

was due to his earlier consumption of marijuana rather than consciousness of guilt for

possession of the weapon. See id.

Appellant points to evidence that Brown owned the car; appellant was in the

car for only two blocks; Brown immediately pulled over for the officers without

delaying to give appellant time to hide anything; appellant was not seen holding the

firearm; no evidence of fingerprints linked him to the firearm; and appellant testified

he leaned forward in his seat to buckle his seatbelt. Although these are circumstances

that do not link appellant to the weapon, other circumstances show that he knowingly

possessed the firearm. The firearm was located within inches of appellant’s legs, in

easy reach, in a place where he was seen reaching as he leaned forward in the seat.

The gesture appeared to the officers as though appellant was putting something

beneath the seat. The officers stated that appellant was nervous and seemed as

though he wanted to flee from the officers. These circumstances are sufficient for the

jury to infer that appellant knowingly possessed the firearm that was found near his

feet. See Hernandez , 538 S.W.2d at 131 (holding that absence of certain affirmative

links “is not evidence of appellant’s innocence to be weighed against the evidence

tending to connect appellant to the [contraband]”).

Appellant contends the determination that the evidence was factually

insufficient in Nguyen compels that same holding here because of the similarities

between the circumstances. See Nguyen , 54 S.W.3d at 51–52. Appellant is correct

that many similarities exist between his situation and the appellant in Nguyen . See

id. In both cases, the defendant was the front passenger in a car stopped for a traffic

violation; the defendant was seen reaching towards the place where the gun was

found; the car was not registered to the defendant; the defendant was in the car for a

minimal period of time while it drove a short distance; the defendant was not seen

handling the gun; no matching fingerprints were obtained from the gun; and

circumstances suggested the defendant had consciousness of guilt. The

circumstances showing consciousness of guilt were that Nguyen feigned being asleep

when the officer saw him awake, and here, that appellant seemed nervous and looked

around as if he wanted to flee. See id.

Although the circumstances in Nguyen are similar to the ones here, one

material difference that is not present in Nguyen is highly probative of appellant’s

knowing possession of the firearm. Here, the firearm was within inches of appellant’s

feet, in a place that was easily accessible to him, and in a position where he was seen

reaching, in a manner that appeared as though he was placing something beneath the

seat. Although Nguyen was also seen reaching towards the place where the gun was

found, that weapon was less accessible to Nguyen due to its location under a

removable back seat behind the driver and testimony was presented about the

difficulty of reaching it from Nguyen’s position. See id. at 52 . Here, the easy

accessibility of the gun, combined with appellant’s gesture towards it, his

nervousness, and his behavior suggesting an intent to flee, are sufficient

circumstances to warrant a determination that the evidence is factually sufficient.

We conclude that the evidence is not so weak that the verdict is clearly wrong

and manifestly unjust, and there is no basis in the record for a determination that the

great weight and preponderance of the evidence contradicts the jury’s verdict. See

Watson , 204 S.W.3d at 417 . We hold the evidence is factually sufficient. We

overrule appellant’s second issue.

Admission of Evidence In his third issue, appellant contends that the trial court erred by allowing the

State to question appellant “as to what another person would have said if called as a

witness.” Appellant points to two comments by the prosecutor during cross-examination.

A. Comment Regarding What Driver Would Say

Appellant challenges the State’s cross-examination question to him that asked

whether the driver of the car, Brown, “would be able to say that that wasn’t your

gun.” Appellant’s trial counsel objected that the question called for speculation. The

trial court overruled the objection, allowing the question. Appellant then responded,

“I mean I can’t control another individual. I can’t predict what they’ll say so I really

couldn’t tell you, sir.” Appellant contends that he was harmed by the ruling because

the main issue in the case came down to whether the circumstantial evidence,

consisting of proximity and movement, outweighed his testimony. See id .

To determine whether the erroneous admission of evidence merits reversal, we

look to Rule 44.2(b) of the Rules of Appellate Procedure, governing

nonconstitutional error in criminal cases. See Tex. R. App. P. 44.2(b); Johnson v.

State , 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). The judgment must be reversed if the

error affected the accused’s substantial rights. See Tex. R. App. P. 44.2(b); Johnson ,

43 S.W.3d at 5 . Error affects a substantial right when it has a substantial and

injurious effect or influence in determining the jury’s verdict. Johnson , 43 S.W.3d

at 3–4. An erroneous evidentiary ruling is harmless when other evidence on the same

matter is admitted without objection from appellant. Saldano v. State , 232 S.W.3d

77, 102 (Tex. Crim. App. 2007, pet. filed) ; Leday v. State , 983 S.W.2d 713 , 717–18

(Tex. Crim. App. 1998).

Assuming the court erred by overruling the objection, the same information

was admitted without any objection by appellant. Without objection, appellant was

asked whether the driver was surprised when the gun was taken out of the driver’s

car, and appellant answered, “I don’t know what he was thinking, sir. That’s

something you would have to ask him.” Appellant’s unobjected-to testimony related

that appellant did not know what Brown, the driver, was thinking and that only

Brown could say whether Brown was surprised by the seizure of the gun found in the

car. This is the same information that appellant contends was erroneously allowed

by the trial court. Because the same evidence was introduced without objection, any

error in the trial court’s ruling to allow the evidence was rendered harmless. See id.

B. Comment Implying that Appellant Was Obligated to Bring Brown to Testify

Appellant also contends that the State implied that it was appellant’s obligation

to bring Brown to testify. After appellant answered, “That’s something you would

have to ask [Brown],” the State responded, “We would have that chance if your friend

was here. Wouldn’t we, Mr. James?” The State contends that error, if any, is waived

because appellant did not object to this statement by the prosecutor. An appellant

must object, or he waives error. Tex. R. App. P. 33.1(a); Steadman v. State , 31

S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Turner v.

State , 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)). We hold that appellant waived

error by fai ling to object to the State’s question. See Steadman , 31 S.W.3d at 741 .

We overrule appellant’s third issue. Conclusion

We a ffirm the trial court’s judgment.

Elsa Alcala

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

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