                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00228-CR



      JOHNNY HORACE MCCRAY, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 71st District Court
                Harrison County, Texas
               Trial Court No. 13-0118X




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
        On April 8, 2013, when police officers in Harrison County initiated a traffic stop of a

white Chevrolet Suburban for speeding, it was being driven by Johnny Horace McCray, Jr., a

convicted felon who had earlier been released from confinement. The vehicle also had three

other occupants, at least one of which was intoxicated, and, notably, a loaded rifle beside the

driver’s seat. From that incident, McCray was convicted of unlawful possession of a firearm by

a felon. 1 On appeal, McCray claims the evidence is insufficient to support positive findings on

two elements of the offense, first, that he possessed the rifle at all and, second, that his release

from confinement from his earlier felony was less than five years before this possession.

        We affirm the trial court’s judgment because (1) sufficient evidence supports a finding

that McCray was released from confinement for his prior felony less than five years before this

incident and (2) sufficient evidence supports a finding that McCray possessed the rifle.

        In evaluating legal sufficiency of the evidence, we must review all the evidence in the

light most favorable to the jury’s verdict to determine whether any rational jury could have

found, beyond a reasonable doubt, that McCray committed the offense of unlawful possession of

a firearm by a felon. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.

App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007)). In our examination, we defer to the responsibility of the jury “to fairly resolve

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

1
 Pursuant to the jury’s finding of true to the State’s enhancement allegations, McCray was sentenced to twenty-five
years’ imprisonment.

                                                        2
to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        Here, the indictment alleged that McCray possessed a firearm April 8, 2013, and that

McCray previously had been convicted August 2, 2011, of a felony offense.

        A person who has been convicted of a felony commits an offense if he possesses a
        firearm: (1) after the 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 . . . .

TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). As stated, McCray contests on appeal only

the elements of his possession and the timing thereof relative to his earlier release.

(1)     Sufficient Evidence Supports a Finding that McCray Was Released from Confinement for
        His Prior Felony less than Five Years Before this Incident

        McCray argues that there is no evidence of the date of his release from the predicate

felony offense of possession of a controlled substance. We disagree. The State introduced an

August 2, 2011, judgment of conviction along with McCray’s judicial confession of guilt, to

prove the predicate felony conviction. On that date, the trial court sentenced McCray to one

year’s confinement in a state jail facility. However, McCray was given credit for time already
                                                  3
served from January 15, 2008, to March 6, 2008, and from September 4, 2010, to August 2,

2011. The judgment from the predicate felony established August 2, 2011, as the date of release

from confinement. 2 Thus, the State established that the 2013 possession of a firearm occurred

within five years of the 2011 date of release from confinement for the predicate felony

conviction. We overrule this contention.

(2)     Sufficient Evidence Supports a Finding that McCray Possessed the Rifle

        McCray argues that this evidence was legally insufficient to show his possession of the

rifle. To support a conviction for possession of a firearm by a felon, the State must show that the

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

connection with it, and that he possessed the firearm knowingly or intentionally. See Davis v.

State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002, pet. ref’d) (citing Brown v. State, 911

S.W.2d 744, 747 (Tex. Crim. App. 1995); Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—



2
 Moreover, we have previously noted that Section 46.04 of the Texas Penal Code does not “necessarily require proof
of the date of release from confinement in all cases.” Fagan v. State, 362 S.W.3d 796, 799 (Tex. App.—Texarkana
2012, pet. ref’d) (quoting Tapps v. State, 257 S.W.3d 438, 445 (Tex. App.—Austin 2008), aff’d on other grounds,
294 S.W.3d 175 (Tex. Crim. App. 2009)). As explained in both Fagan and Tapps,

        “Under section 46.04, the period during which firearm possession by a felon is forbidden begins
        on the date of conviction (the date one is ‘convicted of a felony’) and ends on the fifth anniversary
        of the person’s release from confinement or the person’s release from any form of supervision or
        parole, whichever date is later. Thus, the minimum period that a felon will be prohibited from
        possessing a firearm—assuming the felon is released from confinement or supervision on the date
        of conviction or is never confined—is five years from the date of conviction. The date of release
        from confinement is necessary to determine the maximum length of this period specifically when
        the period extends beyond five years from the date of conviction. The date of release from
        confinement is not necessary when the alleged possession occurs within five years of the date of
        conviction because the period of prohibition extends for this duration in any event.”

Id. (quoting Tapps, 257 S.W.3d 445). In other words, if the State proves that the conviction was within the
minimum five-year period mentioned above, additional proof of the date of release from confinement is
unnecessary.
                                                         4
Texarkana 1998, pet. ref’d)). 3 The evidence used to satisfy these elements may be direct or

circumstantial, but must “establish that the accused’s connection with the firearm was more than

just fortuitous.” Id.

        At trial, McCray testified that the white Suburban he was driving belonged to his

girlfriend, Tosha Johnson, and that he had not recently driven the vehicle before the incident.

McCray claimed that he drove the Suburban on the day of his arrest because his Jeep was in the

shop. He further testified that he was surprised to discover that there was a rifle in the car, he

had no idea how the rifle got there, and he did not tell officers that he found the rifle. McCray

denied that the rifle belonged to him and told the jury that Bruce Hicks admitted to ownership of

the weapon. McCray further testified that he did not know why Hicks put his rifle in the

Suburban.

        During cross-examination, the State established that McCray, who was on dialysis, was

required to take a medication called Renvela with every meal. Although McCray told the jury he

had not recently driven Johnson’s vehicle before the night of his arrest, McCray’s medication

was found in the glove compartment beside the rifle shells. McCray claimed that the medication

was old.

        If “the firearm is not found on the accused’s person or is not in the accused’s exclusive

possession, additional facts must affirmatively link the accused to the contraband.” Id.; James v.

State, 264 S.W.3d 215, 218–19 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). This rule


3
 “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).
                                                         5
protects the innocent bystander—such as a relative, friend, or even stranger to the actual

possessor—from conviction merely because of his fortuitous proximity to a firearm belonging to

someone else. See Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006); Smith v.

State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d).

       The State may establish possession by proving links which demonstrate that the accussed

“was conscious of his connection with the weapon and knew what it was.” James, 264 S.W.3d

at 219. Several nonexclusive factors may establish such a link, including whether

       (1) the contraband was in plain view; (2) the defendant was the owner of the
       vehicle in which the contraband was found; (3) the defendant was in close
       proximity and had ready access to the contraband; (4) the contraband was found
       on the same side of the vehicle as the defendant; (5) conduct by the defendant
       indicated a consciousness of guilt, including extreme nervousness or furtive
       gestures; (6) the defendant had a special connection or relationship to the
       contraband; (7) the place where the contraband was found was enclosed;
       (8) occupants of the automobile gave conflicting statements about relevant
       matters; (9) the defendant was the driver of the vehicle in which the contraband
       was found; (10) contraband was found on the defendant; (11) the defendant
       attempted to flee; and (12) affirmative statements connect the defendant to the
       contraband, including incriminating statements made by the defendant when
       arrested.

Williams v. State, 313 S.W.3d 393, 397–98 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d);

see James, 264 S.W.3d at 219; Davis, 93 S.W.3d at 668; see also Evans, 202 S.W.3d at 162 &

n.12. “It is not the number of links that is dispositive, but rather the logical force of all of the

evidence, direct or circumstantial.” Williams, 313 S.W.3d at 398. “The absence of various links

does not constitute evidence of innocence to be weighed against the links present.” Id.

       Here, the evidence showed that, although McCray’s girlfriend owned the Suburban,

McCray had a right to use it and was driving the vehicle before his arrest. The rifle was situated

                                                 6
in plain sight on the front driver’s side of the vehicle in very close proximity to McCray.

According to Perkins and Jones, McCray claimed that he picked up the rifle at a car wash, but

Young denied that the group had been to a car wash. Although no contraband was found on

McCray’s person, rifle shells were found in the glove compartment right beside McCray’s

medication, and an open liquor bottle was found in the front middle console. We find that the

evidence established substantial links between McCray and the rifle recovered during the search.

More importantly, we find that the logical force of these links, taken together, had a very strong

tendency to connect McCray to the firearm.

       McCray’s denial of the ownership of the rifle required a resolution of conflicting

evidence, as well as an evaluation of witness credibility and the weight to be given to their

testimony. These are functions left to the jury’s sole discretion. See Cain v. State, 958 S.W.2d

404, 408–09 (Tex. Crim. App. 1997). In light of the State’s cross-examination of McCray, the

jury was free to reject McCray’s self-serving testimony, which failed to explain why McCray,

who knew that he was a convicted felon, chose to drive around with the rifle by his side. Thus,

the logical force of the evidence supports an inference of conscious possession of the firearm.

       Legally sufficient evidence supported the jury’s finding that McCray committed the

offense of felon in possession of a firearm.




                                                7
      We affirm the trial court’s judgment.



                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      April 22, 2014
Date Decided:        May 23, 2014

Do Not Publish




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