                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00413-CR


ANTHONY SCOTT GORDON                                              APPELLANT

                                           V.

THE STATE OF TEXAS                                                      STATE


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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                          MEMORANDUM OPINION1

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      A jury convicted Appellant Anthony Scott Gordon of unlawful possession of

a firearm by a felon and upon his plea of true to the enhancement allegation,

assessed his punishment at twelve years’ confinement. The trial court sentenced

him accordingly.     Appellant brings a single point on appeal, challenging the

sufficiency of the evidence. Because the evidence is sufficient to support the

jury’s verdict, we affirm the trial court’s judgment.
      1
       See Tex. R. App. P. 47.4.
      Through a series of text messages, investigators Ray Miller and Justin

Caraway arranged to meet two men at a convenience store in Hood County for

the purpose of buying a half pound of marijuana for $650. Miller and Caraway

arranged to have uniformed, backup officers hidden near the convenience store

and decided to arrest whoever showed up without making any attempt to

purchase the marijuana. When the car in which Appellant was riding arrived at

the convenience store, the officers stopped the car, arrested Appellant and the

driver, Jason Michael May, and searched the car and the two men. The officers

found a cell phone in Appellant’s possession, and on the front passenger

floorboard, they found a baggie with 1.6 ounces of marijuana and another baggie

containing a nickel-plated nine millimeter handgun. The handgun held a fully

loaded magazine plus one round in the chamber. The officers found a black ski

mask in the rear passenger seat, a silver-bladed knife under the back seat, and a

slim jim in the car’s trunk.    There is no evidence that anyone checked to

determine if the handgun was registered to any particular person, nor did anyone

check the handgun for fingerprints. When asked about the gun, Appellant denied

that it was his.   The cell phone that the officers removed from Appellant’s

possession contained pictures of Appellant and also contained text messages

consistent with those sent and received by the investigators while they arranged

for the marijuana purchase.

      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 favorable to the verdict to


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determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.2

      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.3 The trier of fact is the sole judge of

the weight and credibility of the evidence.4 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.5 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.”6 We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution.7




      2
        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).
      3
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
      4
       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).
      5
       Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
      6
       Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
      7
       Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.


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         The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor.8

         As the State correctly sets out, it bears the burden of proving that

Appellant was previously convicted of a felony offense and that he 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 is later.9 Appellant challenges only the sufficiency of the evidence of

the nexus between him and the handgun found in the car.

         To sustain its burden of proving a sufficient nexus between Appellant and

the handgun, the State must prove that possession of the firearm is a voluntary

act.10        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 sufficient

time to permit him to terminate his control.11 The State must show that Appellant

exercised actual care, custody, or control of the firearm; that he was conscious of

his connection with the firearm; and that he possessed the firearm knowingly or



         8
         Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13.
         9
      See Tex. Penal Code Ann. § 46.04 (West 2011); Hawkins v. State, 89
S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
         10
             See Tex. Penal Code Ann. § 6.01(a) (West 2011).
         11
             Id. § 6.01(b); Hawkins, 89 S.W.3d at 677.


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intentionally.12   It is not necessary that the State prove that Appellant had

exclusive possession of the firearm.13 Proof of joint possession is sufficient to

sustain the State’s burden.14 Evidence of knowing or intentional possession of

the firearm may be direct or circumstantial.15

       Appellant argues that the evidence is insufficient to provide an affirmative

link between him and the firearm because no one saw him handle the weapon;

he testified that it was not his gun; his fingerprints were not found on the gun or

on the bullets; despite Miller’s testimony to the contrary, the picture on his cell

phone of a hand holding a gun was not clearly identified as Appellant’s hand

holding the confiscated gun; the gun was not in plain view when the police found

it; he was in the car for only a short period of time; he did not possess other

contraband; he did not flee; he did not own the vehicle; and the place where the

gun was found was not enclosed.

       Viewing the evidence in the light most favorable to the jury’s verdict, we

note that the record shows that Appellant was seated in the front passenger seat

of the car. The fully loaded firearm and the marijuana were both located at his

       12
        See Bates v. State, 155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no
pet.); Smith v. State, 118 S.W.3d 838, 841 (Tex. App.—Texarkana 2003, no
pet.).
       13
        See Bates, 155 S.W.3d at 216; Hawkins, 89 S.W.3d at 677.
       14
       Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Smith v. State,
176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d).
       15
        Hawkins, 89 S.W.3d at 677.


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feet. The text messages setting up the buy came from the cell phone found in

Appellant’s possession.      The person sending the text messages to the

investigators said, “My boy brought me.” Indeed, Appellant was the passenger

and was being driven by May. The investigators testified that they were afraid

the person texting them was planning to rob them because he instructed them to

separate. Their suspicions were confirmed when they discovered that Appellant

had brought a fully loaded handgun and significantly less than the half pound of

marijuana that they had agreed to purchase.

      Applying the appropriate standard of review, we hold that a rational jury

could have found the circumstances sufficient to prove to them beyond a

reasonable doubt that Appellant knowingly possessed the firearm. We overrule

Appellant’s sole point and affirm the trial court’s judgment.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: September 20, 2012




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