Opinion
Nos. 05-08-00778-CR, 05-08-00779-CR, 05-08-00780-CR
Opinion Filed July 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause Nos. 2-07-405, 2-07-406, and 2-07-407.
Before Justices FITZGERALD, LANG, and FILLMORE.
OPINION
Catarie Creon Wright appeals the trial court's judgments convicting him of aggravated robbery, aggravated kidnaping, and unlawful possession of a firearm by a felon, each enhanced by one prior conviction. In cause nos. 05-08-00778-CR and 05-08-00779-CR, the jury found Wright guilty of aggravated robbery and aggravated kidnaping, he used a deadly weapon in each offense, the enhancements true, and assessed his punishment at sixty years of imprisonment in each case. In cause no. 05-08-00780-CR, the jury found Wright guilty of unlawful possession of a firearm by a felon, the enhancement true, and assessed his punishment at twenty years of imprisonment. In cause nos. 05-08-00778-CR and 05-08-00779-CR, Wright raises one issue on appeal arguing the trial court erred when it failed to make written findings of fact and conclusions of law as required by article 38.22, section 6, of the Texas Code of Criminal Procedure because the voluntariness of his written statement was raised during the hearing on his motions to suppress. See Tex. Code Crim. Proc. Ann. art. 38.22 § 6 (Vernon 2005). We concluded the trial court was required by article 38.22, section 6, to enter findings of fact and conclusions of law, abated the appeal, and ordered the trial court to file a supplemental clerk's record with those findings and conclusions. The trial court filed a supplemental clerk's record containing its findings of fact and conclusions of law. Also, we construe Wright's argument to include a claim the trial court erred when it denied his motions to suppress and conclude the trial court did not err. The trial court's judgments in cause nos. 05-08-00778-CR and 05-08-00779-CR are affirmed. In cause no. 05-08-00780-CR, Wright raises three issues arguing there is no evidence, legally insufficient evidence, and factually insufficient evidence to prove he possessed a firearm within five years of being released from confinement on a prior felony. We conclude the evidence is legally insufficient to prove he possessed a firearm within five years of being released from confinement on a prior felony as required by section 46.04 of the Texas Penal Code. See Tex. Penal Code Ann. § 46.04 (Vernon Supp. 2008). The trial court's judgment in cause no. 05-08-00780-CR is reversed and a judgment of acquittal is rendered.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 27, 2007, Wright and Lashawn Blakely went to Rockwall Dodge where Benjamin Wright worked as a sales associate. Wright introduced himself to Benjamin Wright as "Marcus." Wright and Blakely expressed an interest in a 2003 heavy duty truck and asked Benjamin Wright to start the engine so they could hear what it sounded like. When Benjamin Wright started the engine, Wright and Blakely got into the truck, sat in the backseat, and asked Benjamin Wright to drive the truck so they could feel how it rode. Benjamin Wright drove the truck onto the service road and, after approximately fifteen seconds, heard Wright say "I've got my fucking piece. We're taking this truck." At first, Benjamin Wright did not understand what he meant. However, when he turned around, he saw that Wright had a gun pointed at his head. Benjamin Wright offered to pull the truck over to the side of the road and said they could have the truck. Instead, Wright told Benjamin Wright to take the next entrance onto highway I-30. While he was driving, Blakely repeatedly asked Benjamin Wright if the truck had a GPS tracking system. Again, Benjamin Wright asked if he could pull over and get out of the truck, but Wright told him to keep driving. Also, Wright asked Benjamin Wright for his cellular telephone. However, when Benjamin Wright said he would need it to get back to the dealership, Wright just took the battery. After approximately fifteen minutes, Wright told Benjamin Wright to exit the highway and stop at a field located next to the service road. After Benjamin Wright left the truck, he asked for his battery back and Wright gave it to him. Blakely told Benjamin Wright he had to wait ten minutes before calling the police and Benjamin Wright agreed. However, as soon as they drove away, Benjamin Wright called 9-1-1. After hearing a radio dispatch describing the truck and its occupants, Officer B. St. Clair observed the truck. He followed the truck waiting for additional officers to catch up to them. Once on a residential street, the truck stopped abruptly. Wright got out the truck and began running between the houses. Officer St. Clair chased after Wright on foot and observed that Wright had a gun in his hand. While chasing Wright, Officer St. Clair heard a garbage can lid close. As he continued to chase Wright, he observed that Wright no longer had a gun in his hand. After Officer St. Clair apprehended Wright, he went back to the garbage can and found a Sig Sauer B-239 semiautomatic gun inside. Detective Kevin Tilley interviewed Wright. After reading Wright the Miranda warnings, he asked Wright if he understood his rights and Wright responded "Yes." Then, he asked Wright if he was willing to discuss the events of the day and again Wright answered "Yes." Wright confessed to his involvement, and Detective Tilley asked him to provide a written statement. The Miranda warnings are printed at the top of the form and Detective Tilley asked Wright to read them. Wright complied and again stated he understood the Miranda warnings. Then, Wright handwrote his statement on the form and signed it. Wright was indicted for aggravated robbery, aggravated kidnaping, and unlawful possession of a firearm by a felon, each enhanced by one prior conviction. The jury found Wright guilty of each offense and that he used a deadly weapon while committing the aggravated robbery and aggravated kidnaping. Wright pleaded true to the enhancements. The jury found the enhancements true and assessed Wright's punishment for the aggravated robbery and aggravated kidnaping at sixty years of imprisonment for each offense and for the unlawful possession of a firearm by a felon at twenty years of imprisonment.II. VOLUNTARINESS OF STATEMENT
In his sole issue in cause nos. 05-08-00778-CR and 05-08-00779-CR, Wright argues the trial court erred when it failed to make written findings of fact and conclusions of law as required by article 38.22, section 6, of the Texas Code of Criminal Procedure because the voluntariness of his written statement was raised during the hearing on his motions to suppress. The State responds that Wright's issue is moot because the trial court corrected its error when it filed findings of facts and conclusions of law in compliance with this Court's order and Wright does not raise any issue regarding the propriety of the trial court's decision to admit his statement.A. Written Findings and Conclusions
Wright claims that without the trial court's findings and conclusions, the appellate court has nothing to review and must conduct a harm analysis, and "the proper remedy is to reverse and remand for [a] new trial, or abate the appeal and remand to the trial court for the required findings." Initially, we concluded the trial court was required by article 38.22, section 6, to enter findings of fact and conclusions of law regarding the voluntariness of Wright's statement. See Tex. Code Crim. Proc. Ann. art. 38.22 § 6. Then, we abated the appeal and ordered the trial court to file a supplemental clerk's record with those findings and conclusions. The trial court filed a supplemental clerk's record containing its findings of fact and conclusions of law. Accordingly, we need not review Wright's first issue on appeal to the extent he claims the trial court erred when it failed to make written findings of fact and conclusions of law as required by article 38.22, section 6, of the Texas Code of Criminal Procedure.B. Motion to Suppress
Wright did not raise any additional issues regarding the motions to suppress in cause nos. 05-08-00778-CR and 05-08-00779-CR. Nor did he request permission to file a supplemental brief once the trial court's findings and conclusions were filed. However, in the context of harmful error, Wright contends the voluntariness of his written statement is called into question because the police obtained his confession through trickery and deception. We broadly construe Wright's argument to raise an issue arguing the trial court erred when it denied his motions to suppress in cause nos. 05-08-00778-CR and 05-08-00779-CR.1. Standard of Review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. See St. George, 237 S.W.3d at 725; State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). An appellate court reviews the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003).2. Applicable Law
Article 38.21 of the Texas Code of Criminal Procedure provides that a defendant's statement may be used against him "if it appears that the same was freely and voluntarily made without compulsion or persuasion." See Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005); Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004). Article 38.22, section 2, specifies that no statement made by a defendant as a result of custodial interrogation may be admissible unless: (a) the written statement shows the defendant received certain admonishments; and (b) the defendant, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc. Ann. art. 38.22, § 2. The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao v. State, 235 S.W.3d 235, 239 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 1128 (2008); Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000); Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997). A statement may be deemed "involuntary" under three different theories: (1) failure to comply with article 38.22; (2) failure to comply with the dictates of Miranda; or (3) failure to comply with due process or due course of law because the statement was not freely given as a result of coercion, improper influences, or incompetency. Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App. 1996). Ordinarily, proof of proper warnings preceding the written statement and a defendant's willingness to waive his rights following those warnings should suffice to meet the State's burden on the issue of voluntariness. Griffin v. State, 765 S.W.2d 422, 430 (Tex.Crim.App. 1989).3. Application of the Law to the Facts
Wright contends the voluntariness of his written statement was called into question because the police obtained his confession through trickery and deception. He argues he testified during the suppression hearing the police told him "he could save his wife [i.e., Blakely] from prosecution and incarceration if he took full responsibility for the offenses." Also, he claims he would not have confessed if he had known his wife, i.e., Blakely, would be charged with the offenses anyway. The trial court conducted a pretrial hearing on Wright's motions to suppress his statement and denied the motions. Pursuant to article 38.22, section 6, of the Texas Code of Criminal Procedure, the trial court signed a written order stating its findings of fact to support its conclusion that Wright's statement was voluntary. Those findings were, in part, that: (1) prior to the interview, Investigator Tilley orally advised Wright of his rights under Miranda; (2) Wright did not request the assistance of an attorney; (3) Wright did not assert his right to remain silent; (4) during the interview, Wright orally confessed to his involvement in the offenses for which he was arrested; (5) Wright consented to reduce his statement to writing; (6) as part of his written statement, Wright was provided with a written copy of his Miranda rights consistent with article 38.22, section 2(a); (7) Wright handwrote his statement, and signed and initialed it; (8) Wright was not subjected to any threats or coercion during the interview; and (9) Wright was not promised anything in return for his statement. Further, the record shows, during the suppression hearing, Detective Tilley testified he did not make any promises regarding whether or not Wright's wife, i.e., Blakely, would be charged if Wright were to confess. After reviewing the record, in accordance with the applicable standard, we conclude the trial court did not abuse its discretion because the evidence supports the trial court's factual rendition. Although Wright introduced evidence that conflicted with the State's evidence, the trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. See St. George, 237 S.W.3d at 725. Accordingly, we conclude the trial court did not err when it denied Wright's motions to suppress and admitted his statement into evidence. To the extent Wright argues in cause nos. 05-08-00778-CR and 05-08-00779-CR the trial court erred when it denied his motions to suppress, those issues are decided against Wright.III. SUFFICIENCY OF THE EVIDENCE
In cause no. 05-08-00780-CR, Wright argues three issues: (1) there is no evidence to prove he possessed a firearm within five years of being released from confinement on a prior felony; (2) the evidence is legally insufficient to prove he possessed a firearm within five years of being released from confinement on a prior felony; and (3) the evidence is factually insufficient to prove he possessed a firearm within five years of being released from confinement on a prior felony. He claims the judgment in State's exhibit no. 9 shows he was convicted of the prior alleged felony five years and two days before the commission of the charged offense and there is no evidence of the date he was released from confinement. The State responds Wright stipulated to his prior conviction, conceding that prior conviction was final. Also, the State argues it can be conclusively determined, as a matter of law, absent a pardon or other clemency, Wright was not released from confinement before December 20, 2002, because a person convicted of a state jail felony is not legally entitled to parole or good time credit. Further, the State argues it is improbable, so "as to foreclose any reasonable possibility that it occurred," that within two days, the Board of Pardons and Parole could have made a compete investigation, prepared recommendations, and presented them to the governor, and the governor would have approved the pardon.A. Standard of Review
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied 128 S.Ct. 87 (2007); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). A jury may make reasonable factual inferences based on the evidence, as long as each inference is supported by the evidence presented at trial. See Hooper, 214 S.W.3d at 15-16. However, juries are not permitted to make conclusions based on factually unsupported presumptions or inferences, or mere speculation. Id. at 16. A presumption is a legal inference that a fact exists if the facts giving rise to the presumption are proven beyond a reasonable doubt. Id. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Id. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt. Id.B. Applicable Law
To establish the offense of unlawful possession of a firearm by a felon, the State must show the defendant 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. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2008); Smith v. State, 176 S.W.3d 907, 915-16 (Tex.App.-Dallas 2005, pet. ref'd). Four cases are helpful in addressing the sufficiency of the evidence to prove an offense was committed within five years of the prior felony. See Greer v. State, No. 07-08-00027-CR, 2008 WL 4298519 (Tex.App.-Amarillo Sept. 22, 2008, no pet.) (mem. op.) (per curiam) (not designated for publication); Tapps v. State, 257 S.W.3d 438 (Tex.App.-Austin 2008, pet. granted); McClure v. State, No. 12-05-00209-CR, 2006 WL 1791628 (Tex.App.-Tyler Jun. 30, 2006, no pet.) (mem. op.) (not designated for publication); Gill v. State, 57 S.W.3d 540 (Tex.App.-Waco 2001, no pet.). In 2006, in McClure, the Tyler Court of Appeals addressed the issue of whether the defendant's stipulation to the fact of a previous felony conviction was, by itself, sufficient to support a conviction under section 46.04 of the Texas Penal Code. See Tapps, 257 S.W.3d at 444 (discussing McClure, 2006 WL 1791628 at 2-4). The Tyler Court of Appeals noted the parties did not stipulate that the defendant's possession of the firearms came within five years of his release from confinement for a felony offense. See id. (discussing McClure, 2006 WL 1791628 at *2). The Tyler Court of Appeals determined section 46.04 contained a timing element and required some proof of when the offense of possession of a firearm by a felon occurred in relation to the prior conviction. See id. (discussing McClure, 2006 WL 1791628 at *2). Noting there was no evidence in the record showing that less than five years had elapsed since the defendant's release from confinement, the Tyler Court of Appeals concluded the evidence at trial was legally insufficient and reversed and rendered a judgment of acquittal. See id. (discussing McClure, 2006 WL 1791628 at *4). In 2008, in Tapps, the Austin Court of Appeals examined McClure and distinguished that case from the facts of the case before it. The Austin Court of Appeals concluded section 46.04 does not require proof of the date of release from confinement in all cases. Id. at 445. The minimum period a felon will be prohibited from possessing a firearm is five years from the date of conviction. Id. The maximum period a felon will be prohibited from possessing a firearm is five years from the date of release from confinement. Id. In Tapps, the Austin Court of Appeals concluded the evidence was sufficient because it showed the defendant possessed a firearm just over a year after his conviction, which was well within the five-year period following his conviction. Id. Also, in 2008, in Greer, the Amarillo Court of Appeals noted the defendant stipulated the alleged offense occurred within five years of his release from confinement for a felony conviction. Greer, 2008 WL 4298519 at *1. As a result, the Amarillo Court of Appeals determined it need only determine whether there was sufficient evidence to establish the defendant possessed a firearm. Id. In 2001, in Gill, the Waco Court of Appeals addressed the issue of whether the evidence was legally sufficient to prove the defendant possessed a firearm within five years after being released from prison. Id. at 545. The Waco Court of Appeals concluded the evidence was legally sufficient "[b]ecause Gill committed the instant offense less than five years after he went to prison, he necessarily committed it within five years after he was released from prison." Id. at 546. The penitentiary packet showed the defendant was received into custody on April 13, 1995 and the officer testified he saw the defendant with the handgun on February 9, 1999. Id. However, the Waco Court of Appeals noted, although not necessary in the case before it, it would have been helpful for the State to prove the date on which the defendant was released on parole. Id.C. Application of the Law to Facts
The indictment alleged that, on April 27, 2007, Wright intentionally or knowingly possessed a firearm before the fifth anniversary of his release from confinement for his April 25, 2002 state jail felony conviction for the unauthorized use of a motor vehicle. During the trial in this case, Wright stipulated he was the same person as the person convicted in State's exhibit no. 9. Specifically, the State advised the trial court:[Y]our Honor, my understanding is under the U[nlawful] P[ossession] [of a] F[irearm] felony case, the State was getting ready to call Mr. Norris Nix to prove that the defendant, Catarie Creon Wright, is one and the same person that was convicted of unauthorized use of a motor vehicle on April 25th of 2002 in Cause No. F01-37681 in the 363rd Judicial District Court of Dallas County. My understanding is is [sic] that the defendant is going to stipulate and admit on the record that he is one and the same person so that I would not need to put Mr. Norris Nix on the record.
However, saying that, if I were to put Mr. Nix on the stand, he would testify that he has compared the fingerprints of that prior conviction with the defendant's fingerprints that he took this morning, and he is one and the same person.Defense counsel stated Wright agreed to that stipulation. However, there is nothing in the record showing the parties stipulated that Wright possessed the firearm before the fifth anniversary of his release from confinement for that felony conviction. See Tapps, 257 S.W.3d at 444 (discussing McClure, 2006 WL 1791628 at *4). The State offered exhibit no. 9, defense counsel stated "no objection," and the exhibit was admitted into evidence. State's exhibit no. 9 contains a judgment dated April 25, 2002, cause no. F01-37681-W, 363rd Judicial District Court, Dallas County, Texas, convicting Wright of the unauthorized use of a motor vehicle, and sentencing him to 300 days of confinement and an $800 fine. The judgment also shows Wright received credit for time served from March 15, 2002 through April 25, 2002, for a total of 42 days. The State published exhibit no. 9 to the jury and stated:
Ladies and gentlemen, under Cause No. F01-37681W, the defendant, Catarie Creon Wright, in the 363rd Judicial District Court of Dallas County, Texas, was convicted of the offense of unauthorized use of a motor vehicle. The judgment date is April 25th of 2002. The defendant received 300 days in the state jail facility with an $800 fine.
The element that must be shown is that he was finally convicted of a felony offense and that it was within five years. His sentence time was within the five years-the time that he is confined is within the five years of him possessing a firearm in this case.Wright did not object to the State's statement to the jury that the charged offense occurred within five years of the time he was confined for the prior felony. Viewing the evidence in the light most favorable to the verdict, there is legally insufficient evidence because there is no evidence to prove Wright possessed a firearm within five years of being released from confinement on the prior alleged felony. The minimum period Wright was prohibited from possessing a firearm, assuming he was released from confinement on the date of conviction or was never confined, was the date he was convicted. See Tapps, 257 S.W.3d at 445. The record shows Wright was convicted of the alleged prior felony on April 25, 2002. The indictment alleged Wright unlawfully possessed a firearm on April 27, 2007. As Wright contends, the evidence shows he possessed a firearm five years and two days after his prior felony conviction. As a result, the date Wright was released from confinement was necessary for a determination that Wright possessed a firearm before the fifth anniversary of his release from confinement for that prior felony. See id. The maximum period Wright was prohibited from possessing a firearm was five years from the date of his release from confinement. See id. Although the evidence in the record shows the date of Wright's conviction, there is no evidence showing the date Wright was released from confinement. The State argues it can be conclusively determined, as a matter of law, absent a pardon or other clemency, Wright was not released from confinement before December 20, 2002, because a person convicted of a state jail felony is not legally entitled to parole or good time credit. Further, the State claims is it improbable Wright was pardoned in the two days following his conviction. The trial court's charge instructed the jury, in part:
Our law provides that a person who has been convicted of a felony commits an offense if he possesses a firearm after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision, under community supervision, parole, or mandatory supervision, whichever date is later. . . .
Now, if you find from the evidence beyond a reasonable doubt that in Rockwall County, Texas, on or about the 17th day of April, 2007, the defendant CATARIE CREON WRIGHT, did then and there having been convicted of the felony offense of UNAUTHORIZED USE OF A MOTOR VEHICLE, on the 25th day of April, 2002, in cause number F-01-37681W in the 363rd Judicial District Court of Dallas County, Texas, in case on the docket of said Court entitled The State of Texas vs. CATARIE CREON WRIGHT, intentionally or knowingly possess[ed] a firearm before the fifth anniversary of the defendant's release from confinement following conviction of said felony, then you will find the defendant guilty of unlawful possession of a firearm by a felon as charged in the indictment. . . .
You are the exclusive judges of the facts proven, of the credibility of the witnesses, and the weight to be given their testimony, but the law you shall receive in these written instructions must govern you.There is nothing in the trial court's charge advising the jury as to the laws relating to pardons, clemency, or the applicability of parole or good time credit to state jail felonies. Any conclusion by the jury that it was legally impossible, unlikely, or improbable Wright would have been released from confinement during the two days following his prior felony conviction was reached by speculation. See Hooper, 214 S.W.3d at 16 (defining speculation and stating juries may not reach conclusions based on speculation). To reach that conclusion the jury would have had to speculate, theorize, or guess about the possible meaning of the date of Wright's conviction in relation to the laws and procedures relating to pardons, clemency, or the applicability of parole or good time credit to state jail felonies. See id. Although it is not completely unreasonable to speculate Wright was not released from confinement during the two days following his conviction, there is no evidence to support such a finding or factual inference, and the jury was not charged as to the laws that would support such a presumption or legal inference. See id. Without any evidence showing the date Wright was released from confinement, the State failed to meet its burden to prove the timing element for a violation of section 46.06. See Tapps, 257 S.W.3d at 444 (discussing McClure, 2006 WL 1791628 at *2). As a result, we conclude a rational jury could not have found an essential element of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Accordingly, based on the record before us, we conclude the evidence is legally insufficient to prove Wright possessed a firearm after his conviction and before the fifth anniversary of his release from confinement for his prior felony. Issue two is decided in favor of Wright. Because we have concluded the evidence is legally insufficient to support Wright's conviction for the unlawful possession of a firearm by a felon, we need not address issues one and three.