                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00330-CR


JONATHON SEARS                                                         APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      A jury convicted Appellant Jonathon Sears of the felony offense of unlawful

possession of a firearm by a felon,2 and, upon his plea of true to the habitual

offender paragraph, the trial court sentenced him to eight years’ confinement.

Appellant brings three issues on appeal, challenging the validity of the search

warrant resulting in the discovery of the firearm and the sufficiency of the evidence
      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 46.04(a) (West 2011).
linking him to the firearm and contending that he received ineffective assistance of

counsel at trial. Because Appellant did not preserve his challenge to the warrant

below, the evidence sufficiently links him to the firearm, and he has not satisfied his

burden to prove both prongs of his ineffective assistance of counsel claim, we affirm

the trial court’s judgment.

Validity of the Warrant

          In his first issue, Appellant challenges the seizure of the firearm.         But

Appellant did not file a motion to suppress. Additionally, when the State offered the

firearm and the clip into evidence, trial counsel stated that he had no objection. To

preserve error about the illegal seizure of evidence, a defendant must either file a

motion to suppress and obtain a ruling on the motion or timely object when the State

offers the evidence at trial.3

          Appellant concedes that trial counsel made no effort to challenge the warrant

and filed no motion to suppress the fruits of the search. He admits that trial counsel

wholly failed to preserve this complaint for appellate review. We therefore overrule

Appellant’s first issue.

Sufficiency of the Nexus

          In his second issue, Appellant contends that the evidence is insufficient to link

him to possession of the firearm. In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

          3
          Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet.
ref’d).


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favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.4

      This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.5 The trier of fact is the sole judge of the weight

and credibility of the evidence.6 Thus, when performing an evidentiary sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder.7 Instead, we Adetermine 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.@8 We

must presume that the factfinder resolved any conflicting inferences in favor of the

verdict and defer to that resolution.9




      4
       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      5
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
      6
      See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
      7
       Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
      8
       Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
      9
       Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.


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      An essential element of the offense of felon in possession of a firearm is that

the convicted felon possess the firearm.10 When the accused is not in exclusive

possession of the location where the contraband, in this case the firearm, is found,

the State must establish “additional independent facts and circumstances” that “link”

the accused in such a manner that it can be concluded that the accused had

knowledge of the firearm and exercised control over it.11

      Officer Rodney McMullin approached a house to execute the search warrant;

he saw a man he later identified as Appellant standing at a front window. McMullin

identified Appellant as that man during the trial. When McMullin entered the house,

he went to the front bedroom of the house where he had seen Appellant standing in

the front window. On the way there, he encountered Appellant and secured him.

McMullin saw a pistol lying on a table near the window where he had seen Appellant

standing.

      Appellant was not alone in the house. There were two other people present

when the officers executed the warrant.

      Latent prints were found on the magazine inside the pistol. Deborah Smith, a

latent print examiner for the Fort Worth Police Department Crime Laboratory,

compared the prints to those of Appellant and determined that the two sets of prints

matched.


      10
        See Tex. Penal Code Ann. § 46.04(a).
      11
        Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).


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      Appellant argues that had the gun been his, his prints would have been “all

over the weapon itself.” Additionally, he argues that evidence of his possession fails

because there is no evidence regarding when he touched the magazine or if he, in

fact, inserted the clip into the weapon. Appellant argues that the evidence shows

only that he touched the clip and not that he actually possessed the firearm itself.

He also points to the presence of the two other people in the house at the time of his

arrest.

      The jury could have properly inferred that Appellant possessed the gun, given

that its magazine found inside contained his fingerprints and that the gun was found

in the same bedroom and near the spot he stood when the police first saw him upon

their arrival at the house.

      Applying the appropriate standard of review, we hold that the evidence is

sufficient to show that Appellant possessed the firearm and to support his

conviction. We overrule Appellant’s second issue.

Ineffective Assistance of Counsel

      In his third issue, Appellant argues that his trial counsel rendered ineffective

assistance of counsel because there is no evidence of any trial preparation

whatsoever. No pretrial motions were filed, no motion to suppress was filed, there is

no evidence of any attempted discovery, and trial counsel did nothing to challenge

the search that produced the firearm. Retained counsel did nothing during the trial

except elicit from Appellant his desire not to testify at trial and bring in co-counsel at




                                            5
the last minute. Co-counsel had time only to file a single motion in limine on the day

of trial.

        To establish ineffective assistance of counsel, an appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable probability

that, but for counsel’s deficiency, the result of the trial would have been different. 12

        In evaluating the effectiveness of counsel under the first prong, we look to the

totality of the representation and the particular circumstances of each case.13 The

issue is whether counsel’s assistance was reasonable under all the circumstances

and prevailing professional norms at the time of the alleged error. 14 Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct fell within a wide range of reasonable

representation.15 A reviewing court will rarely be in a position on direct appeal to

fairly evaluate the merits of an ineffective assistance claim. 16 “In the majority of

cases, the record on direct appeal is undeveloped and cannot adequately reflect the

        12
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009); Hernandez v. State,
988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
        13
            Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
        14
            See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
        15
        Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
        16
            Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.


                                           6
motives behind trial counsel’s actions.”17          To overcome the presumption of

reasonable professional assistance, “any allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.”18    It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record.19

       The second prong of Strickland requires a showing that counsel’s errors were

so serious that they deprived the defendant of a fair trial, that is, a trial with a reliable

result.20 In other words, an appellant must show there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.21 A reasonable probability is a probability sufficient to undermine

confidence in the outcome.22 The ultimate focus of our inquiry must be on the

fundamental fairness of the proceeding in which the result is being challenged.23




       17
         Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).
       18
         Id. (quoting Thompson, 9 S.W.3d at 813).
       19
         Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
       20
         Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
       21
         Id. at 694, 104 S. Ct. at 2068.
       22
         Id.
       23
         Id. at 697, 104 S. Ct. at 2070.


                                             7
      As inadequate as trial counsel’s performance appears from the record

available to this court, we cannot say that Appellant has met his burden to prove

both prongs of the Strickland standard.

      Appellant contends that trial counsel should have challenged the warrant and

supporting affidavit. Appellant addresses the defects that he perceives in the

warrant and supporting affidavit.      Although the affidavit does not explain as

thoroughly as it could the reasons that the confidential informant could be relied on,

the officers did not rely solely on unverified statements of the informant. The officers

observed heavy traffic to and from the house, consistent with the sale of contraband

from the house. The informant conducted a controlled buy at the drug house for

police officers, showing that drugs were possessed inside the house and being sold

from the house. The affidavit provided the magistrate with a substantial basis for

deciding that probable cause existed, and the warrant was sufficiently valid to

support the search.24

      Appellant also argues that trial counsel should have sought to suppress the

firearm that was the fruit of the search of the house. Appellant contends that the

officers were obligated to obtain a new search warrant after discovering the weapon

because it was not named in the original warrant. He provides no authority for this

position, however, and does not explain why a weapon found in plain view by

      24
         See State v. McLain, 337 S.W.3d 268, 271–74 (Tex. Crim. App. 2011);
Barrett v. State, Nos. 07-11-0002-CR, 07-11-0003-CR, 07-11-0004-CR, 07-11-0005-
CR, 07-11-0006-CR, 2012 WL 1694423, at *3–4 (Tex. App.—Amarillo May 15,
2012, no pet. h.).


                                           8
officers conducting a lawful search cannot be seized without securing an additional

warrant. Indeed, the Texas Court of Criminal Appeals has upheld searches and

seizures under similar circumstances, stating that a firearm seen on a breakfast bar

during a lawful search was “contraband in plain view” which the officers were

permitted to seize.25

      We cannot say that failure to object to a valid affidavit and warrant or failure to

file a futile motion to suppress constitutes ineffective assistance of counsel. Further,

Appellant does not suggest that his sentence was affected by trial counsel’s

performance. Because Appellant did not sustain his burden under Strickland, we

overrule Appellant’s third issue.

Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s judgment.




                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 14, 2012




      25
        Jones v. State, 565 S.W.2d 934, 936 (Tex. Crim. App. [Panel Op.] 1978).


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