Affirmed and Memorandum Opinion filed August 4, 2016.




                                    In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00433-CR

                   MICHAEL JAMES PERRY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                  On Appeal from the 232nd District Court
                          Harris County, Texas
                      Trial Court Cause No. 1421833

                 MEMORANDUM OPINION

      Appellant Michael James Perry appeals his conviction for unlawful
possession of a firearm by a felon. Appellant challenges the sufficiency of the
evidence supporting his conviction. We affirm.
                  I.     FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was driving a car with an unregistered license plate and wheels
sticking out unlawfully beyond the wheel well, prompting Deputy Alex Chapa of
the Harris County Sheriff’s Department to initiate a traffic stop. Appellant had a
female passenger in the car with him. The patrol vehicle’s video camera captured
the episode. Appellant did not have a driver’s license or other identification, and
the deputy smelled marihuana when he approached appellant’s car. The deputy
asked appellant to get out of the car so that the deputy could verify appellant’s
identity and search the vehicle for drugs.

      At trial, Deputy Chapa testified that he saw a gun in the panel right next to
the driver’s seat when appellant opened the door to get out of the car. The deputy
described the gun as being in plain view when the door was open. When the
deputy said he was going to search the car, appellant disclosed there was a gun in
the car but said it did not belong to him. Appellant said the car belonged to his
aunt, he had called his aunt to tell her he was being pulled over, and during that
call she told him, for the first time, that there was a gun in the car. Appellant told
the deputy conflicting stories about where appellant was going, first that he was on
his way to make a music video and later that he was running an errand and
dropping off his passenger.

      After getting appellant out of the car, Deputy Chapa radioed the officers
coming to assist him to inform them a gun was present at the scene. When the
second officer arrived, Deputy Chapa removed the loaded gun from the panel
beside the driver’s seat and cleared it. After running appellant’s information,
Deputy Chapa discovered appellant was a felon who was not allowed to possess a
firearm.



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      At trial, Francessa Byars, appellant’s girlfriend and the mother of his child,
testified on appellant’s behalf. Byars said she was the owner of the car, but that
appellant drove it often. Byars also owned the gun, which she had purchased a few
months before. Byars testified that she had put the gun under the driver’s seat
earlier that morning because she planned to go to the shooting range with it.
According to Byars, she forgot about the gun when she let appellant borrow the
car, so she did not tell him the gun was under the seat. Byars testified that she was
the one appellant called when he was being pulled over and, at that point, she
remembered the gun and told appellant for the first time that it was under the seat.

      Indicted for unlawful possession of a firearm by a felon, see Tex. Penal
Code Ann. § 46.04(a) (West 2011), appellant pleaded “not guilty.” The indictment
alleged that appellant had been convicted of felony forgery in 2011 and included
an enhancement paragraph alleging appellant had been convicted of aggravated
robbery with a deadly weapon in 2004. The State entered two prior judgments
against appellant to establish these convictions. The State also introduced test
results verifying the gun was a functional firearm. Evidence showed the State
conducted no latent fingerprint examination on the weapon.

      The jury convicted appellant of possession of a firearm by a felon, found the
allegations in the enhancement paragraph to be true, and assessed punishment at
fifteen years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice and a $750 fine. Appellant filed a motion for new trial, which
was overruled by operation of law.        Appellant now appeals his conviction,
challenging the sufficiency of the evidence.




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                                   II.    ANALYSIS

      In asserting his sufficiency challenge, appellant argues that the evidence
does not establish the elements of possession—that he (1) knew of the firearm’s
existence and (2) exercised care, custody, or control over it. See Corpus v. State,
30 S.W.3d 35, 37–38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

      In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The issue
on appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d
611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we
presume the jury resolved conflicts in favor of the prevailing party. Turro v. State,
867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt,
we must affirm. Murray, 457 S.W.3d at 448.

      To establish unlawful possession of a firearm by a felon, the State must
show that the accused was convicted of a prior felony offense and possessed a
firearm after the conviction and within five years of his release from confinement
or from community supervision, parole, or mandatory supervision, whichever date



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is later. Tex. Penal Code Ann. § 46.04(a) (West 2011). Appellant challenges only
the possession element of the offense.

      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. Tex. Penal Code Ann. § 6.01(b) (West 2011).
The Penal Code defines “possession” as “actual care, custody, control, or
management.” Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2015). In cases
involving possession of a firearm by a felon, we analyze the sufficiency of the
evidence under the rules adopted for cases involving possession of a controlled
substance. Corpus, 30 S.W.3d at 37. Accordingly, the State had to prove that
appellant (1) knew of the firearm’s existence and (2) exercised care, custody,
control, or management over the firearm.        Id. at 38.    The State may prove
possession through direct or circumstantial evidence, although the evidence must
establish that the accused’s connection with the weapon was more than fortuitous.
Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).

      When, as in this case, the accused did not hold exclusive possession of the
place where the contraband was found, the State must show additional facts and
circumstances affirmatively linking the accused and the contraband. Id. at 406;
Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d). An affirmative link generates a reasonable inference that the accused knew
of the contraband’s existence and exercised control over it. Hyett v. State, 58
S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The State
may establish affirmative links by the totality of the circumstances. Id.

      Factors that may establish affirmative links between the accused and the
contraband include the following:

           the contraband was in a car driven by the accused;
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           the contraband was in a place owned by the accused;
           the contraband was conveniently accessible to the accused;
           the contraband was in plain view;
           the contraband was found in an enclosed space;
           the contraband was found on the same side of the car as the accused;
           the conduct of the accused indicated a consciousness of guilt;
             the accused has a special relationship to the contraband;
           occupants of the vehicle gave conflicting statements about relevant
            matters; and
           affirmative statements connect the accused to the contraband.

Corpus, 30 S.W.3d at 38. No set formula necessitates a finding of an affirmative
link sufficient to support an inference of knowing possession. Hyett, 53 S.W.3d at
830. The number of factors present is not as important as the logical force the
factors create to prove the accused knowingly possessed the contraband. Corpus,
30 S.W.3d at 38. Additionally, the absence of various links does not constitute
evidence of innocence to be weighed against the links present. Hernandez v. State,
538 S.W.2d 127, 131 (Tex. Crim. App. 1976).

      Appellant contends the evidence is insufficient because there was no
evidence that appellant moved, hid, or touched the gun; the gun was not tested for
fingerprints; the evidence that the gun was in plain view was speculative; there was
no evidence appellant entered the car through the driver-side door; appellant did
not own the car; appellant was cooperative; and appellant did not act particularly
nervous or guilty.

      Appellant has neglected to view the evidence, as we must, assuming the jury
resolved conflicts in favor of the prevailing party. See Turro, 867 S.W.2d at 47.
The record contains circumstantial evidence from which the jury reasonably could
have concluded that appellant moved, hid, or touched the gun. When Deputy
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Chapa approached the car, he observed appellant “moving around a lot.” When
appellant stepped out of the car, the deputy “saw a weapon in the driver panel right
next to the driver’s seat.” According to the deputy, the pistol was not “underneath
the seat.” But, Byars testified that when she loaned her car to appellant, she left
the gun under the driver’s seat. The jury was entitled to believe this evidence and
reasonably could have concluded based on the evidence that, because appellant
was sitting in the driver’s seat and the gun was moved moved from under the seat
to the side panel of the driver’s side, appellant moved the gun.

      Thus, the jury had ample affirmative links between appellant and the gun.
The gun was in a car entrusted to appellant and driven by appellant. The gun was
not only readily accessible to appellant, but also, because it was on his side of the
car, it was inaccessible to the passenger. The gun was in plain view. Finally,
Byars stated that appellant called her as he was being pulled over and so appellant
learned at that moment that there was a weapon in the car. But, when initially
speaking to the deputy, appellant gave no “indication that there was a firearm in
the vehicle.”

      It is true that Byars also claimed that the gun belonged to her. But this
testimony does not make the evidence legally insufficient because we presume that
the jury discredited the witness’s testimony on this point. See Turro, 867 S.W.2d
at 47; Carr v. State, 477 S.W.3d 335, 339 (Tex. App.—Houston [14th Dist.] 2015,
pet. ref’d). The jury was entitled to believe this evidence, but it was not required to
do so. A jury could have found that Byars (appellant’s girlfriend and mother of his
child) had a motive to testify in appellant’s favor. The jury, by its verdict, rejected
the alternate scenario that appellant proffers. See Evans v. State, 202 S.W.3d 158,
165 (Tex. Crim. App. 2006).



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      Viewing the evidence in the light most favorable to the verdict, a trier of fact
reasonably could have determined beyond a reasonable doubt that (1) appellant
knew there was a gun in the car and (2) the gun found beside the driver’s seat was
within appellant’s actual care, custody, control, or management. See Evans, 202
S.W.3d at 165–66; Corpus, 30 S.W.3d at 38; Roberts, 321 S.W.3d at 549–50.
Accordingly, we conclude the evidence is legally sufficient to support appellant’s
conviction.

      We overrule appellant’s issue and affirm the trial court’s judgment.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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