Opinion
No. 05-16-00647-CR
06-01-2017
LARRY LEE HODGES III, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1611712-J
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Schenck
Appellant Larry Lee Hodges III appeals his conviction of unlawful possession of a firearm by a felon. On appeal, appellant argues the evidence is legally insufficient to support his conviction. He also contends that he received ineffective assistance of counsel. We overrule appellant's issues and affirm his conviction. Because all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
I. Facts and Procedure
Appellant was charged by indictment with unlawful possession of a firearm by a felon. TEX. PENAL CODE ANN. § 46.04(a) (West 2011). The indictment alleged that prior to the commission of the instant offense, appellant was duly and legally convicted of a like offense. The indictment included an enhancement paragraph for aggravated robbery conviction. Before trial, the State gave notice that it also intended to seek enhancement of appellant's punishment in view of appellant's prior convictions of: (1) unlawfully carrying a weapon at a school; (2) unauthorized use of a vehicle; (3) forgery by possession of a check with intent to pass; and (4) unlawful possession of a firearm. Appellant pleaded not guilty to the charged offense and pleaded true to having been convicted of aggravated robbery, and forgery by possession of a check with intent to pass. Appellant elected to have a jury decide his guilt or innocence and to have the trial court assess punishment.
II. Evidence at Trial
During its case-in-chief, the State called Officers Burson and Perritt to testify. Their testimony showed the following. At approximately 6:44 a.m. on January 13, 2016, the Carrollton Police Department dispatched Officer Burson to investigate a suspicious vehicle report. The individual making the report indicated a Honda Accord was following him and that he was going to drive to the police station on Josey Lane for assistance. Officer Burson parked his patrol car in the parking lot of that station. While he waited in the parking lot, appellant drove a car matching the description of the suspicious vehicle into the parking lot. The complaining witness had already arrived at the location. Officer Burson approached the Honda Accord and observed appellant was the only person inside. He noticed appellant was excited and very animated upon being approached. Officer Burson asked appellant for identification. Appellant gave him a Texas identification card. Officer Burson returned to his patrol car to run appellant's name through a computer system to check for prior offenses, warrants, and license status. In doing so, he discovered appellant was driving on a suspended license. Shortly thereafter, Officer Perritt appeared. Officer Burson informed Officer Perritt of the status of his inquiry.
At that point, Officer Perritt took over as the primary investigating officer and spoke with appellant, while Officer Burson spoke with the complaining witness. Officer Perritt arrested appellant for driving with a suspended license, placed him in the patrol car, and transported him to the Carrollton jail. In the meantime, Officer Burson began to take an inventory of the vehicle before impounding the car. As part of that process, he inspected the vehicle for dents and looked for personal property. He discovered a 9MM handgun under the driver's seat of the vehicle. It was lying on the floorboard close to the edge of the seat. The gun was loaded with six rounds in the magazine and one in its chamber. Appellant would have had ready access to the gun from the driver's seat. Officer Burson also found a student I.D. card with appellant's name on it in an open console underneath the radio. The vehicle was owned by appellant's girlfriend and registered to her ex-husband.
Officer Burson contacted Officer Perritt and informed him of the presence of the gun in the vehicle they were impounding. Officer Perritt asked appellant about the gun, appellant told him it was not his gun, and refused to talk further.
At trial, the State called a fingerprint expert to establish appellant had a prior conviction for unlawful possession of a firearm by a felon.
Appellant called his girlfriend to testify in his defense. Her testimony showed the following. She owned the Honda Accord appellant was driving on January 13. Usually she drove a Toyota Camry and appellant drove a Chevy Impala. They used the Honda Accord for emergency purposes, such as when one of the other vehicles would not start. She further testified that unidentified people, other than appellant and his girlfriend, sometimes drove the Honda Accord.
Appellant also called Randall Melton to testify at trial. Randall Melton was arrested on December 30, 2015, and was later assigned to the same holding cell as appellant. He testified he and appellant were good friends and claimed to have seen appellant's girlfriend, who he referred to as appellant's wife. He claimed to have borrowed the Honda Accord from appellant on or about December 27, 2015 to run errands, such as buying a Christmas gift for his daughter, picking up items at his ex-girlfriend's house, including the gun Officer Burson found under the driver's seat, buying some boots, and visiting some friends. He indicated he intended to take the gun to his father, but he forgot about the gun and returned the vehicle to appellant with the gun under the front seat. He claimed he placed the gun under the front seat so that he could dispose of it quickly if he was "pulled over."
During cross-examination, appellant's girlfriend was shown a picture of Melton. She did not recognize him and indicated she would not have allowed anyone she did not know to borrow her car.
The jury found appellant guilty of the charged offense and the trial court imposed the minimum sentence applicable to appellant's enhanced offense and ordered appellant to be imprisoned for twenty-five years.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant urges the evidence is insufficient to support the jury's finding of guilt.
I. Standard of Review
When conducting a legal sufficiency review, we must ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"—not whether "it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In doing so, we assess all of the evidence in the light most favorable to the verdict. Id. at 319. This same standard applies equally to circumstantial and direct evidence. Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). The standard for review gives deference to the fact finder to resolve conflicts in testimony, weigh evidence, draw reasonable inferences, and judge the credibility of witnesses. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). After giving proper deference to the factfinder's role, we will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential element of the charged offense. Laster, 275 S.W.3d at 518.
II. Applicable Law
To establish unlawful possession of a firearm by a felon, the State is required to show appellant 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 supervision or parole, whichever is later. TEX. PENAL CODE ANN. § 46.04(a)(1). "Possession" means actual care, custody, control, or management. Id. § 1.07(a)(39) (West Supp. 2016). A person commits a possession offense only if he voluntarily possesses the prohibited item. See id. § 6.01(a) (West 2011). 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).
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. McDaniel v. State, No. 05-14-00887-CR, 2015 WL 2153450, at *1 (Tex. App.—Dallas May 7, 2015, no pet.) (mem. op., not designated for publication) (citing Young v. State, 752 S.W.2d 137, 140 (Tex. App.—Dallas 1988, pet. ref'd)). Thus, the State must prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). The State's evidence, which may be either direct or circumstantial, must establish the accused's connection with the firearm was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
If the firearm is not found on the accused's person or is not in the exclusive possession of the accused, the evidence must affirmatively link the accused to the firearm. Bates v. State, 155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). Factors which may establish affirmative links include whether: (1) the firearm was in plain view; (2) the accused was the owner of the car in which the firearm was found; (3) the accused was the driver of the car in which the firearm was found; (4) the accused was in close proximity and had ready access to the firearm; (5) the firearm was found on the same side of the car seat as the accused was sitting; (6) the firearm was found on the accused; (7) the defendant attempted to flee; (8) conduct by the accused indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (9) the accused had a special connection or relationship to the firearm; (11) the place where the firearm was found was enclosed; (12) occupants of the automobile gave conflicting statements about relevant matters; and (13) affirmative statements connect the accused to the firearm, including incriminating statements made by the accused when arrested. See id. at 216-17. The number of factors present is not talismanic. Id. at 217. Rather, it is the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. Id.
III. Application of Law to Facts
Here, the record reveals a number of affirmative links between appellant and the firearm. Appellant was the driver and sole occupant of the vehicle when the firearm was discovered. The firearm was found under the front seat on the same side of the car where appellant was sitting. Thus, appellant was in close proximity and had ready access to the firearm. Appellant was agitated and anxious while speaking with police and was stopped for following another vehicle in the early morning hours without any explanation as to why he was doing so and in a manner that caused the complaining witness to be concerned about his personal safety to the point he called for assistance.
While appellant offered Melton's confession to having placed the gun under the front seat of the car, a fact issue existed as to whether Melton was ever loaned or in possession of the car. While Melton testified to being good friends with appellant, he thought appellant was married as he referred to appellant's girlfriend as appellant's "wife." In addition, while Melton testified he had seen appellant's "wife," appellant's girlfriend testified she did not recognize Melton and would not have allowed someone she did not know to borrow her car. Moreover, many of Melton's statements about the events were not plausible. For instance, he indicated he needed to borrow the car to get his daughter a Christmas present two days after Christmas. Melton also indicated he put great thought into transporting the firearm and being able to get rid of it quickly if he got "pulled over," but somehow forgot at the end of the day to retrieve the gun. Most importantly, Melton suggested he urgently needed to dispose of the firearm and one of his errands was to deliver the firearm to his father. Yet that was the one errand Melton admitted he did not complete. The jury was free to accept all, none, or merely parts of Melton's testimony based on its assessment of his credibility. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The jury was free to credit Melton's version of events and still conclude, from the lapse of time and appellant's demeanor and proximity to the firearm, that appellant knew it was there, and thus regardless of who owned it, appellant had unlawful custody or control of it given his prior felony convictions.
Viewing all of the evidence and the factors discussed above in the light most favorable to the verdict, we conclude the evidence is sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant had possession of the gun found in the Honda Accord. Accordingly, the evidence is legally sufficient to support appellant's conviction. See Laster, 275 S.W.3d at 518. We overrule appellant's first issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, appellant urges he received ineffective assistance of counsel because trial counsel failed to stipulate to his prior conviction of unlawful possession of a firearm, failed to impeach the testifying officers with previous statements, and failed to object to Officer Perritt's commentary on appellant's invocation of his right to remain silent. Appellant urges the cumulative effect of these three alleged errors prejudiced his defense.
I. Standard of Review
To prevail on a claim for ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that: (1) trial counsel's performance fell below the objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 690-92 (1984); Hernandez v. State, 726 S.W.2d 53, 54-57 (Tex. Crim. App. 1986) (adopting Strickland standards in Texas).
II. Applicable Law
In order to prevail on the merits of the claim, the allegations of deficient conduct and prejudice must be firmly founded in the factual record. See Holland v. State, 761 S.W.2d 307, 320 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). According to controlling Texas jurisprudence, "Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Consistent with these legal principles, the Texas Court of Criminal Appeals has also recognized that in most cases the record on direct appeal will provide no explanation for counsel's performance, such that a claim of ineffective assistance will not prevail because it cannot overcome the strong presumption of reasonable professional assistance on the part of trial counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 & n.6 (Tex. Crim. App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813.
III. Application Law to Facts
The record in this case is silent as to why appellant's counsel chose not to enter a stipulation to the State's allegation that appellant had a prior conviction for possession of a firearm by a felon. Appellant urges that, had trial counsel stipulated to his prior conviction, the jury would not have been informed that he had previously been convicted of having committed the very same offense for which appellant was on trial in the instant case. Trial counsel's decision not to stipulate to the prior conviction may have been strategic or the result of appellant's refusal to do so. See Bush v. State, No. 2-01-399-CR, 2003 WL 360954, at *2 (Tex. App.—Fort Worth Feb. 20, 2003, pet. ref'd) (mem. op., not designated for publication). Consequently, appellant has failed to satisfy the first prong of the Strickland test as to this complaint of deficient performance.
The failure to stipulate left the burden on the State to properly prove the conviction and the identity of the perpetrator. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). While these are seemingly simple tasks, error in either might have been urged as a basis for acquittal or reversal on appeal. See e.g., Strehl v. State, 486 S.W.3d 110, 114 (Tex. App.—Texarkana 2016, no pet.) (evidence that the defendant merely has the same name as the person previously convicted is not sufficient to satisfy the prosecution's burden).
The record is also silent as to why trial counsel did not attempt to impeach the officers with the information disclosed in the State's notice of potential "Brady," exculpatory, or mitigating information. The record does show, however, that on cross-examination of the State's witnesses appellant's counsel established neither officer was able to see the gun when they approached appellant, the police did not attempt to try to discover who the gun was registered to or to lift fingerprints from same, appellant did not own the car he was driving, and there was trash underneath the driver's seat and on the floorboards of the passenger side of the vehicle and the backseat, which appellant suggested could have prevented him from discovering the gun's presence. In addition, trial counsel presented a possible explanation as to who the gun belonged to and how it got into the car. As such, there was nothing in the State's disclosure of the text messages from Officers Burson and Perritt concerning the link of the gun to appellant that would have been admissible to impeach the officers as urged by appellant. See Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987) (a witness' prior inconsistent statements are admissible to impeach a witness). Consequently, appellant has failed to satisfy the first prong of the Strickland test as to this complaint of deficient performance.
The "Brady" notice stated the following: "On the evening of May 30, 2016, I had conversation, via text message, with Officers Burson and Perritt of the Carrollton Police Department discussing this case. I asked them to tell me about what affirmative links they remembered tying Defendant to the car and the gun. Office Perritt responded, 'I believe the car was registered to someone else. I would have to run the tag again to confirm that. He obviously denied knowledge at that time. I don't know [sic] if we had any hard evidence he knew the gun was there. I can't remember if we asked him how long he had been driving the car, that would need a video review.' Officer Perritt further added, '[Officer] Burson said wallet and lunchbox were only personal items in the car, which isn't much help.' Officer Burson added, 'Other than the wallet, and maybe the lunch box, I don't recall any other personal items in the car.'"
Appellant also complains that trial counsel should have objected to Officer Perritt's comments concerning appellant's invocation of his right to remain silent. Again, the record does not affirmatively establish that appellant invoked his right to remain silent. Specifically, in reference to the State's question regarding appellant's demeanor after Officer Perritt disclosed Officer Burson found a gun the car, Officer Perritt testified, "He immediately said it wasn't his gun and just didn't want to talk to me anymore at that point." The State then asked Officer Perritt what happened next, to which he testified: "Booked him in, placed him in jail, he didn't want to talk to me any further, didn't want to answer any questions for me." The record is silent as to whether appellant had been read Miranda warning at that time and had waived his right to remain silent. If appellant had been given the Miranda warning and waived his right to remain silent, his actual silence, in response to certain questions could have been admitted against him. Friend v. State, 473 S.W.3d 470, 480 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd); Anderson v. State, No. 02-05-00169-CR, 2006 WL 744272, at *2 (Tex. App.—Fort Worth, Mar. 23, 2006, pet. dism'd) (mem. op., not designated for publication). Consequently, the record does not affirmatively establish trial counsel's conduct to be objectively unreasonable.
Finally, appellant argues that the cumulative effect of trial counsel's errors warrants the reversal of his conviction. However, the court of criminal appeals has repeatedly rejected cumulative error arguments. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (no authority holding that non-errors may in their cumulative effect cause error); Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 2000) (when there has been no constitutional violation, no "cumulative" harm could have occurred). This is equally true in the instant case. None of appellant's alleged claims of deficient conduct have merit or are supported by the record. Consequently, there can be no "cumulative effect" sufficient to warrant reversal of appellant's conviction.
We overrule appellant's second issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47
160647F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F-1611712-J.
Opinion delivered by Justice Schenck. Justices Francis and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 1st day of June, 2017.