No. 05-08-00241-CR
Opinion Filed November 22, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F05-58394-QMY.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice MOSELEY.
A jury convicted Mackie Ray White of unlawful possession of a firearm by a felon and assessed punishment at six years' confinement. In his original brief, White contended (1) the trial court erred by denying his motion to suppress evidence, and (2) the evidence is factually insufficient to prove he possessed the firearm. On original submission, we concluded the trial court did not err by denying the motion to suppress, and that the evidence was factually insufficient under the Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), standard. In Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the court of criminal appeals decided that the standard of review under Jackson v. Virginia, 443 U.S. 307, 319 (1979), is the only standard a reviewing court should apply in determining whether evidence is sufficient to support each element of an offense the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 895. The court overruled all cases to the contrary. Id. The State filed a petition for discretionary review. The court of criminal appeals granted the petition, vacated our judgment, and remanded this case for further action in light of Brooks. Both parties filed supplemental briefs on remand. White contends the evidence is legally insufficient to prove that he had possession of the firearm. After reviewing the evidence under the Jackson standard, we conclude the evidence is insufficient for the jury to be rationally justified in finding guilt beyond a reasonable doubt. Accordingly, we reverse the trial court's judgment and render a judgment of acquittal.
Legal Sufficiency
White's supplemental point of error challenges the legal sufficiency of the evidence to prove he possessed the firearm. In reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our review of all the evidence includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Viewing the evidence "in the light most favorable to the verdict" under this standard means that the reviewing court is required to defer to the jury's credibility and weight determination because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326); see also Tex. Code Crim. Proc. Ann. art. 38.04. Thus, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). The indictment alleged that on or about October 14, 2005, White intentionally and knowingly possessed a firearm, to wit: a handgun, and the possession was before the fifth anniversary of his release from confinement or parole for a prior felony conviction. See Tex. Penal Code Ann. § 46.04(a)(1). "Possession" means actual care, custody, control, or management. Id. § 1.07(a)(39). A person commits a possession offense only if he voluntarily possesses the prohibited item. Id. § 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. Id. § 6.01(b). When an individual is charged with unlawful possession of a controlled substance or a firearm, the State must prove the accused: (a) exercised care, custody, control, or management over the contraband or firearm; and (b) knew the matter was contraband or a firearm. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). If the accused is not in exclusive possession of the area where the contraband or firearm is found, the evidence must link the accused to the contraband or weapon. See Evans, 202 S.W.3d at 162; Poindexter, 153 S.W.3d at 406. Mere presence at the location where the contraband was found is not sufficient, by itself, to establish actual care, custody or control of the contraband. Evans, 202 S.W.3d at 162. "However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., 'links'), may well be sufficient to establish that element beyond a reasonable doubt." Id. There is no set formula to determine what links are sufficient and the number of links present is not as important as the "logical force" or degree to which the factors, alone or in combination, tend to link the accused to the contraband or weapon. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). Some factors that may establish the link include: (1) whether the contraband or weapon was in plain view or found on the accused; (2) the accused's proximity and accessibility to the weapon or contraband; (3) whether the accused owned or controlled the place where the contraband or weapon was found; (4) whether the accused made any incriminating statements; (5) whether the accused tried to flee; and (6) whether the accused made furtive gestures. See Evans, 202 S.W.3d at 162 n. 12; Poindexter, 153 S.W.3d at 409-12. It is the logical force of the factors present, not the absence of factors found in other cases, that must be evaluated in the sufficiency review. See Edwards v. State, 178 S.W.3d 139, 144 (Tex. App.-Houston [1st Dist.] 2005, no pet.). Discussion
Initially we address the State's argument on remand that White waived a legal sufficiency challenge because he did not raise it in his original brief. Before Brooks, an appellant could raise a legal sufficiency point, a factual sufficiency point, or both. As we noted in our original opinion, White did not challenge the legal sufficiency of the evidence and we did not consider the evidence under the Jackson standard. See White v. State, No. 05-08-00241-CR, slip op. at 2 n. 1 (Tex. App.-Dallas May 10, 2010). However, given the court of criminal appeals' conclusion that there is "no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis factual-sufficiency standard, and these two standards have become indistinguishable," Brooks, 323 S.W.3d at 902, we decline to hold in this case that White waived the legal sufficiency standard by relying on only the factual sufficiency standard as it existed at the time of the original appeal. Thus, we reject the State's waiver argument. The record contains evidence that in the fall of 2005, Dallas police were engaged in an operation to suppress crime during the State Fair in the area near Fair Park. Officer Ashley Smith testified she and other officers were at a car wash near the park on October 14, 2005. The car wash was a good location to obtain information about drug trafficking. Around 2:00 a.m., an unnamed person at the car wash told officers that drugs were being sold at a nearby house. Smith was familiar with the house and police had been there before investigating reports of drug sales. Smith and the other officers planned to walk up to the house from behind and observe what was happening in front of the house on the porch. Six officers approached the house from the rear. Smith was behind two other officers. The lights were on inside the house and two men were on the front porch. When the first officer jumped onto the porch, one of the men started running away and two of the officers ran after him. Smith thought they had interrupted a drug transaction. She saw White standing on the porch in front of the door and took him into protective custody. Through the open door, Smith saw a coffee table inside the house with a silver revolver on it within reach of the door. The butt of the gun was pointing toward the door so that anyone coming inside could quickly grab it. Smith's partner, Timothy Falk, testified the coffee table was in the second room from the front room, but visible through an open doorway inside the house. He could see the handgun on the table from the front porch. Smith and Falk entered the house to secure the gun and sweep for other persons who might try to use the weapon against the officers. Police did not find anyone inside the house and did not apprehend the man who ran away. Smith found two other firearms on the coffee table, and later saw a shotgun under a couch. Police also found ammunition in the house. No drugs were found in the house or on White. A check for warrants and criminal history showed an active warrant for White and he was arrested on that warrant. There is evidence that at the time of his arrest, White was under supervision for his parole on a prior felony conviction for drug possession. Smith testified that she found a prescription bottle in one of the bedrooms with White's name on it. White confirmed it was his. Smith did not think the prescription bottle was relevant at the time and did not seize it or mention it in her police report. White called several witnesses in his defense. Judson Hoover testified White managed and collected rent for several properties Hoover owned, including the house where White was arrested. White was in the process of buying that property from Hoover and acquired title sometime in November 2005 (after the arrest in this case). A printout from the Dallas County Appraisal District listed White as the owner of the house in 2006, but showed Hoover as the owner in 2005. To Hoover's knowledge, White never lived at the house and Hoover understood the property was leased to Jared Hubbard. Hubbard testified he lived at the house at the time of the arrest and paid rent to White or sometimes to Hoover. Hubbard claimed the firearms seized from the house belonged to him and he bought them on the street. Hubbard testified he, Christopher Hawkins, Nakeisha Phillips, Brittany Newhouse, and White were at the house that night. Hubbard, Phillips, and Hawkins had smoked marijuana that night and were getting ready to leave for a club when the police arrived. Hawkins was on the front porch, White was near the front door and Newhouse was asleep in a bedroom off of the main room. Hubbard admitted he sold narcotics out of the house and was arrested for selling cocaine at the house about a year after White's arrest. Hawkins, Newhouse, and Phillips testified that they were at the house with Hubbard and White the night police arrested White. They also testified that Hubbard lived at the house and rented it from White. They agreed White did not live there. All three testified White was in the bedroom where Newhouse was when police arrived. Newhouse was pregnant at the time of the arrest, probably with White's child. She said she never lived at the house, but stayed there sometimes. Sometime before White's arrest, she called police because she had some "stuff" in the house and someone broke into the house and ransacked it. Newhouse also described an incident where White's ex-girlfriend threw a brick through the window of the house trying to get back at White. Neither Newhouse nor Hawkins remembered seeing any of the firearms that were seized from the house. Phillips remembered the shotgun because Hubbard showed it to her after he bought it, but she did not know about the handguns. The State called officer Otha Hampton on rebuttal to testify that he met White and Newhouse at the house in September 2005 to investigate a criminal mischief complaint. Hampton did not enter the house, but White said he owned the house and Hampton had the impression he lived there. White argues that other than his mere presence at the house, the evidence is insufficient to link him to possession of the firearm at the time it was seized. He argues it is undisputed that Hubbard owned all the firearms and all the defense witnesses testified Hubbard lived at the house and rented it from White. The State points to the conflicting evidence about who was present when the police arrested White. Police testified only White and the man who ran away were on the porch when police arrived; no one was found in the house. Four defense witnesses testified they were inside the house along with White when the police entered the house. Resolution of this conflict in favor of the State, however, does not link White to the firearm-it shows only his presence on the porch with another man, while the firearm was inside the house. The State argues the jury was entitled to draw an adverse inference from this conflicting and implausible evidence as to who was at the house that night. In support of this contention, the State cites cases involving statements by the defendant to police or his testimony at trial. Here, White did not make any statements to police, did not attempt to flee or conceal evidence, and did not testify at trial. Other witnesses gave conflicting testimony about how many people were present the night of the arrest. The jury was free to resolve the conflicting evidence and to draw reasonable inferences from all the evidence. Juries may "draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions." See Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). The jury could have reasonably concluded that the defense witnesses were not present at the house that night and only White and the other man were on the porch when police arrived. However, it would be unreasonable to infer from the conflicting evidence about who was there that night that White exercised care, custody, control, or management over the firearm. The State argues the firearm was in plain view from the porch, but according to the State's evidence, the firearm, while visible, was inside the house and White was outside on the porch. Evidence the firearm was in plain view from the porch may indicate White could have seen and therefore had knowledge of the firearm, but it does not show he exercised care, custody, control, or management over the firearm. While there was some proximity between White and the firearm, the same can be said for the man who ran away. (The flight factor in fact points toward the man who ran away from police rather than to White.) The State argues the prescription bottle found inside a bedroom with White's name on it connected White to the firearm. Again the logical force of this circumstantial evidence is not strong; the bottle was found in a bedroom and the firearm was on a coffee table in the front room or another room visible from the front door. The presence of the prescription bottle may tend to connect White to the house, along with the evidence he collected rent at the house, but does not show his connection to the firearm was anything more than fortuitous. The State contends White's presence was more than fortuitous. White claimed ownership of the house when he and Newhouse met Hampton at the house a few weeks before his arrest. Newhouse also said White's ex-girlfriend threw a brick through the window of the house in order to get back at White. These incidents, according to the State, are evidence that White lived at the house. However, common sense indicates a person "may jointly possess property like a house but not necessarily jointly possess the contraband found in that house." Poindexter, 153 S.W.3d at 406. While it would be reasonable to infer that White had a connection to the house, either as the owner, buyer, or landlord, there is also evidence that other people were connected to the house, including Newhouse. Even on the night of his arrest, White was not alone at the house; another man was on the porch when police arrived. In addition, the State argues that drug sales had been attributed to the house and guns are commonly used in connection with drug sales. The State argues the evidence supports "an inference that drugs had very recently been distributed at the house in question. The fact that the police did not locate any drugs does not negate this inference or its rationality. Indeed, drugs may well have been delivered by White to the person who hurriedly escaped upon seeing the police." However, it is "the obligation and responsibility of appellate courts 'to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.'" Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010) (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). Furthermore, "[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient [to convict]." Id. (quoting Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992), superseded in part on other grounds, Herrin v. State, 125 S.W.3d 436, 443 (Tex. Crim. App. 2002)). Evidence that police suspected they had interrupted a drug transaction, that White supplied drugs to Hubbard, who sold drugs from the house, and that guns are commonly associated with drugs does not seem to connect White to the firearm. No drugs were found in the house, police testified they did not seek a search warrant for drugs after White's arrest, and White was not charged with a drug offense. It would be irrational to find that White possessed the firearm found inside the house based on evidence that someone else sold drugs at the house at some other time than White's arrest. After reviewing all the evidence in the light most favorable to the verdict, we conclude the evidence is insufficient for any rational jury to find beyond a reasonable doubt that White possessed or exercised care, custody, control, or management of the firearm. Accordingly, the evidence is legally insufficient to support the jury's verdict. We sustain White's point of error. Conclusion
We reverse the trial court's judgment and render a judgment of acquittal.