Gay Lane Gilbert v. State

Opinion published April 22, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00351-CR

GAY LANE GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1164768

MEMORANDUM OPINION

Appellant, Gay Lane Gilbert, pursuant

to a plea agreement with the State, pleaded guilty to the state jail felony

offense of fraudulent use or possession of identifying information. [1]

The trial court sentenced appellant to two years confinement, suspended the

sentence, and placed her on community supervision for two years. The State subsequently moved to revoke

community supervision, two conditions of which required appellant to “commit no

offense against the laws of this or any State” and forbade her to “be in

possession of any firearms.” In two issues,

appellant contends that the evidence is legally and factually insufficient to

support the trial court’s revocation of community supervision.

We

affirm.

Background

In its motion to revoke community

supervision, the State alleged that appellant had violated several conditions

of her community supervision, including unlawfully possessing a firearm. [2]

At the hearing on the State’s motion,

Houston Police Department Officer A. Blomberg testified that on November 18,

2008, he drove to an apartment located on South Drive in Houston to execute an

arrest warrant for appellant for the offense of fraud. When he arrived, he knocked on the door, and appellant’s

18-year old son answered and said that appellant was not there. Blomberg asked appellant’s son if he could

“make sure [appellant] wasn’t there, there was a felony warrant,” and her son agreed. Inside the apartment, Blomberg found “a bunch

of prescription bottles” in appellant’s name on the nightstand next to the bed

in a bedroom that the son told Blomberg was “his mom’s bedroom.” Blomberg opened the door to the walk-in closet

inside the bedroom and saw “two pump action shotguns.”

Alicia Ibarra, the court liaison

officer for the 248th District Court, testified that appellant’s current

address on file with the court was on Quail Meadow in Missouri City,

Texas. Lindsey Sidney, appellant’s adult

daughter, testified that her family had lived at the Quail Meadow address while

she was growing up and appellant was still living there on November 18, 2008. On cross-examination, Sidney admitted that

she had not lived at the Quail Meadow address since 2003 and made only

infrequent visits to Houston.

Appellant testified that she had

lived at the Quail Meadow address since before she was placed on probation and

the South Drive apartment was her half-brother’s residence. On cross-examination, appellant denied that

she lived at the apartment but admitted that she had “spent a couple of

weekends there briefly” and her medications were in the bedroom because she had

visited her half-brother on “several occasions.”

At the close of the hearing, the

trial court found that appellant had violated several conditions of her community

supervision by “committing an offense against the state of Texas, failure to

avoid vicious or injurious habits, failure to pay supervision fee, failure to

pay fine & court costs, failure to pay laboratory fee, failure to

pay/obtain offender ID card, failure to pay Crime Stoppers, failure to pay

Children’s Assessment Center, [and] failure to pay Assessment fee.”

Standard of Review

In

a community supervision revocation hearing, the State must prove by a

preponderance of the evidence that the probationer violated the terms and

conditions of community supervision. Cobb v. State , 851 S.W.2d 871, 873 (Tex.

Crim. App. 1993). This standard is met

when the greater weight of the credible evidence creates a reasonable belief

that the defendant violated a condition of her probation as the State alleged. Jenkins

v. State , 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Akbar v. State , 190 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.]

2005, no pet.). The trial judge is the

sole trier of the facts and determines the credibility of the witnesses and the

weight to be given their testimony. Taylor v. State , 604 S.W.2d 175, 179

(Tex. Crim. App. 1980); Amado v. State ,

983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Proof of a single violation is sufficient to

support a revocation. Akbar , 190 S.W.3d at 123 . Appellate

review of a trial court’s order revoking community supervision is limited to

determining whether the trial court abused its discretion. Id .

at 122. We examine the evidence in the

light most favorable to the trial court’s order. Id .

at 123 (citing Garrett v. State , 619

S.W.2d 172, 174 (Tex. Crim. App. 1981)).

Legal and Factual Sufficiency

In

her two issues, appellant argues that the evidence is legally and factually

insufficient to support revocation of her community supervision because the

evidence does not affirmatively link her to the firearms found in the closet. [3]

First, we note that a factual

sufficiency review, as urged by appellant, is inapplicable to revocation

proceedings. Johnson v. State , 943 S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.] 1997,

no pet.); Cherry v. State , 215 S.W.3d

917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d); Becker v. State , 33 S.W.3d 64, 66 (Tex. App.—El Paso 2000, no

pet.). Instead, we review the evidence

in the light most favorable to the trial court’s order to determine whether the

State proved, by a preponderance of the evidence, that appellant had violated

the terms of her community supervision by possessing a firearm.

To prove unlawful possession of a

firearm, the State had to present evidence that appellant possessed a firearm. See Tex. Penal Code Ann . § 46.04(a)(1)

(Vernon Supp. 2009). Possession means

“actual care, custody, control, or management.”

Id . § 1.07(a)(39) (Vernon

Supp. 2009). “Possession” is a “voluntary

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

aware of [her] control of the thing for a sufficient time to permit [her] to

terminate [her] control.” Id .

§ 6.01(b) (Vernon 2003). When, as here,

the accused is not in exclusive possession of the place where contraband is

found, additional independent facts and circumstances must “link” the accused

to the contraband “in such a way that it can be concluded that the accused had

knowledge of the contraband and exercised control over it.” Roberson

v. State , 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d); see Brown v. State , 911

S.W.2d 744, 748 (Tex. Crim. App. 1995). The

evidence used to prove possession can be direct or circumstantial, and in

either case, the State must establish that the defendant’s connection with the contraband

was “more than just fortuitous.” Evans v. State , 202 S.W.3d 158, 161

(Tex. Crim. App. 2006); Poindexter v.

State , 153 S.W.3d 402 , 405–06 (Tex. Crim. App. 2005).

Among the many possible factors that

we may consider in deciding whether there is a link between a defendant and

contraband are whether (1) the contraband was in plain view; (2) the contraband

was conveniently accessible to the accused; (3) the accused was the owner of

the place where the contraband was found; (4) the place where the contraband

was found was enclosed; and (5) the size of the item was large enough to

indicate the defendant’s knowledge of its existence. Cole v.

State , 194 S.W.3d 538 , 548–49 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(citing Gilbert v. State , 874 S.W.2d

290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)); Robles v. State , 104 S.W.3d 649, 651 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). The number of linking factors present is not

as important as the “logical force” they create to prove that an offense was

committed. Roberson , 80 S.W.3d at 735 .

However, the absence of various links does not constitute evidence of

innocence to be weighed against the links present. Hernandez

v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James v. State ,

264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

Officer Blomberg found on the bedside

table in a bedroom, which appellant’s son identified as appellant’s room, numerous

prescription bottles belonging to appellant.

Appellant’s name was written on the labels of these bottles. Though not in plain view, the two large shotguns

were found in the walk-in closet within appellant’s bedroom, making them conveniently

accessible to her. Moreover, the trial

court was free to disbelieve the testimony of appellant and her daughter that

appellant did not live at the apartment.

See Lancon v. State , 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)

(fact-finder is “sole judge of a witness’s credibility” and “may choose to

believe some testimony and disbelieve other testimony”).

Viewing all of the evidence in the

light most favorable to the order of the trial court, we hold that the evidence

is sufficient to prove by a preponderance of the evidence that appellant knowingly

exercised “actual care, custody, control, or management” over the shotguns. Accordingly, we further hold that the trial

court did not err in revoking appellant’s community supervision.

We overrule appellant’s two issues.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel consists of Justices Jennings,

Hanks, and Bland

Do not publish. Tex.

R. App. P. 47. 2(b).

[1] See

Tex. Penal Code Ann . §§ 32.51(b)(1),

(c)(1) (Vernon Supp. 2009).

[2] See

id . § 46.04 (a)(1) (Vernon Supp.

2009).

[3] The trial court, in its order revoking

appellant’s community supervision, found that that appellant violated the terms

of her supervision in all of the ways alleged by the State. However, the trial court received evidence

only regarding the possession of firearms allegation. No exhibits or other evidence regarding the

State’s other grounds are included in the record. On appeal, appellant challenges only the

firearms ground, and the State responds only to this ground. Neither side acknowledges that the trial

court’s order recites multiple grounds for revoking community supervision.