                                                                                          ACCEPTED
                                                                                    03-14-00673-CR
                                                                                            4456770
                                                                           THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                3/11/2015 1:11:56 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                  IN THE THIRD COURT OF APPEALS

                           AT AUSTIN, TEXAS                        FILED IN
                                                            3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
CHRISTOPHER ANTHONY                §                        3/11/2015 1:11:56 PM
GEORGE,                            §                          JEFFREY D. KYLE
        APPELLANT                  §                                Clerk

                                   §     CAUSE NO. 03-14-00673-CR
V.                                 §     TRIAL COURT NO. 72,519
                                   §
THE STATE OF TEXAS,                §
        APPELLEE                   §


                         BRIEF OF APPELLANT


     Appealed from the 264th Judicial District Court, Bell County, Texas
                     Hon. Martha J. Trudo, presiding




                                   COPELAND LAW FIRM
                                   P.O. Box 399
                                   Cedar Park, TX 78613
                                   Tel/Fax 512.215.8114
                                   e-mail: ecopeland63@yahoo.com

                                   Erika Copeland
                                   State Bar No. 16075250
                                   Attorney for Appellant




APPELLANT HEREBY WAIVES ORAL ARGUMENT
                            TABLE OF CONTENTS

                                                                          Page

Table of Contents                                                         i

Index of Authorities                                                      ii,iii
Identity of Parties and Counsel                                           1

Statement of the Case                                                     2

Issue Presented                                                           3

             The evidence is legally insufficient to support George‟s
      conviction because the State did not prove the actual date of his
      release from confinement resulting from his 2009 conviction
      for robbery.

Statement of Facts/Background                                             4

Summary of the Argument                                                   9

Issue One                                                                 9

Statement of Pertinent Evidence                                           9

Argument                                                                  10

Prayer                                                                    16

Certificate of Service and Compliance with Rule 9                         17




                                         i
                          INDEX OF AUTHORITIES

Authorities                                                    Page
                       United States Supreme Court cases

Jackson v. Virginia                                            11
     443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)


                     Texas Court of Criminal Appeals cases

Cada v. State                                                  11,16
     334 S.W.3d 776 (Tex. Crim. App. 2011)

Geick v. State                                                 11
      349 S.W.3d 542 (Tex. Crim. App. 2011)

Hooper v. State                                                15
     214 S.W.3d 9 (Tex. Crim. App. 2007)

Isassi v. State                                                11
       330 S.W.3d 633 (Tex. Crim. App. 2010)

Malik v. State                                                 11
     953 S.W.2d 234 (Tex. Crim. App. 1997)


                          Texas Court of Appeal cases

Fagan v. State                                                 9,13,16
     362 S.W.3d 796 (Tex. App. – Texarkana 2012, pet. ref’d)

Nguyen v. State                                                11
     54 S.W.3d 49 (Tex. App. – Texarkana 2001, pet. ref’d)

Saldana v. State                                               15,16
     418 S.W.3d 722 (Tex. App. – Amarillo 2013)

                                      ii
                  INDEX OF AUTHORITIES, continued


Authorities                                         Page



Statutes


TEX. PENAL CODE §46.04 (West 2011)                  2

TEX. PENAL CODE §1.07(A)(39) (West 2011)            12

TEX. PENAL CODE §46.04(a)(1) (West 2011)            12




                                     iii
                  IN THE THIRD COURT OF APPEALS
                         AT AUSTIN, TEXAS

CHRISTOPHER ANTHONY                      §
GEORGE,                                  §
        APPELLANT                        §
                                         §         CAUSE NO. 03-14-00673-CR
V.                                       §         TRIAL COURT NO. 72,519
                                         §
THE STATE OF TEXAS,                      §
        APPELLEE                         §

                IDENTITY OF PARTIES AND COUNSEL

TO THE HONORABLE COURT OF APPEALS:

      NOW COMES Christopher Anthony George, appellant, who would

show the Court interested parties herein are as follows:

      CHRISTOPHER ANTHONY GEORGE, appellant.

      ERIKA COPELAND, appellate attorney for appellant, P.O.                Box

399, Cedar Park, Texas 78613.

      STEVE STRIEGLER, trial attorney for appellant, P.O. Box 1683,

Belton, Texas 76513.

      MICHAEL WALDMAR and BOB ODOM, Assistant Bell County

District Attorneys, trial and appellate attorneys, respectively, for the State of

Texas, appellee, P.O. Box 540, Belton, Texas 76513.




Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                             1
                  IN THE THIRD COURT OF APPEALS
                         AT AUSTIN, TEXAS

CHRISTOPHER ANTHONY                      §
GEORGE,                                  §
        APPELLANT                        §
                                         §         CAUSE NO. 03-14-00673-CR
V.                                       §         TRIAL COURT NO. 72,519
                                         §
THE STATE OF TEXAS,                      §
        APPELLEE                         §

                       STATEMENT OF THE CASE

TO THE HONORABLE COURT OF APPEALS:


      Christopher Anthony George was convicted by jury of unlawful

possession of a firearm by a felon. See TEX. PENAL CODE §46.04 (West

2011) and (R.R. 7, p. 94). Included in his indictment was an enhancement

paragraph referencing George‟s prior conviction for burglary of a habitation.

(C.R. 1, p. 5). After the jury found him guilty of the charged offense,

George pleaded “true” to the enhancement paragraph. (R.R. 7, p. 95). The

trial court subsequently reviewed a pre-sentence investigative report, heard

evidence and argument of counsel, and assessed his punishment at

confinement in the Texas Department of Criminal Justice‟s Institutional

Division for eighteen (18) years. (R.R. 8, p. 11). George gave due notice of

appeal from the verdict and sentence. (C.R. 1, p. 67).


Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                         2
                             ISSUE PRESENTED

      The evidence is legally insufficient to support George‟s conviction

because the State did not prove the actual date of his release from

confinement resulting from his 2009 conviction for robbery.




Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                     3
                  IN THE THIRD COURT OF APPEALS
                         AT AUSTIN, TEXAS

CHRISTOPHER ANTHONY                      §
GEORGE,                                  §
        APPELLANT                        §
                                         §         CAUSE NO. 03-14-00673-CR
V.                                       §         TRIAL COURT NO. 72,519
                                         §
THE STATE OF TEXAS,                      §
        APPELLEE                         §


               STATEMENT OF FACTS/BACKGROUND

      Gerald McKinley testified that on the night of February 10, 2014, he

was in his daughter‟s bedroom at 3905 London Lane in Killeen, when he

saw a car backing past his house down the street. Moments later he saw

someone fire two shots from the car into a house located across the street

and three houses down from his own. (R.R. 6, pp. 27-33). He said that after

the shots were fired, the car sped past his house toward the intersection at the

end of his street. (R.R. 6, p. 33). McKinley said he saw a black male

driving the car as it sped past, and he ran out his door to follow. (R.R. 6, pp.

33-34). He testified that he ran after the car and kept it in his sights until it

was stopped by police at the end of his block. He said that no one no one

exited the car before he reached the end of his street where he met the

policeman who had the car stopped. McKinley said that he told the officer


Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                             4
who had stopped the car that the car‟s driver had fired shots into his

neighbor‟s house. The policeman drew his gun and told him to return to his

home. Later, McKinley said, he provided a written statement to another

officer who came to his house. (R.R. 6, p. 36).

      Killeen police officer Marvin Padgett testified that he was on routine

patrol approaching the intersection of 60th and London Lane when he

observed a car run the stop-sign at the intersection. He activated his patrol

car‟s overhead lights, and the car immediately stopped. (R.R. 6, p. 46).

Padgett saw the driver partially open his door and make “movements” under

his seat. (R.R. 6, p. 46-47). Padgett said that he instructed the car‟s driver

to close his door; he approached the car and identified the driver as George.

(R.R. 6, p. 49). When he returned to his patrol car to run George‟s license,

Padgett testified that various people ran up to his patrol car to report that the

person he had stopped had just fired shots into a house on Landon Lane.

(R.R. 6, p. 49). Padgett took out his gun to wait for back-up which arrived

moments later. (R.R. 6, p. 49). When Officer Kellye McDermott arrived,

Padgett ordered George out of his car and onto the ground. He patted

George down, but George denied that he had a weapon. (R.R. 6, p. 51).

After he felt that the situation was under control, Padgett looked in George‟s

car. He saw a spent shell casing on the driver‟s side floorboard. (R.R. 6, p.

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                             5
51). Padgett searched the car but could not find a weapon. (R.R. 6, p. 52).

Padgett said that George volunteered during his pat-down that he was on

parole and that he couldn‟t have a gun. (R.R. 6, p.51). By now, Padgett said,

George‟s driver license check had come back showing his license was

invalid, so Padgett arrested George for driving while his license was

suspended. Padgett said that George asked several times if his wife could

come and get their car, but Padgett told him the car would be impounded.

(R.R. 6, pp. 53-54). In the meantime, Officer Pergrande, whom Padgett had

sent to check on the house where the shooting had occurred, radioed back

that he had found bullet holes as well as shell fragments in the targeted home

at 3808 London Lane. (R.R. 6, p. 54). Padgett testified that following

George‟s booking back at police headquarters, he asked technicians at the

Bell County Jail to perform gunshot residue tests on George. However, he

said that he later learned that the Bell County testing kits were incompatible

with the Austin Lab‟s testing equipment so the residue samples were never

analyzed. (R.R. 6, p. 56). Padgett‟s COBAN video system from his patrol

car was introduced into evidence. See State‟s Exhibit 4.

      Kellye McDermott‟s testimony fairly mirrored that of Padgett‟s. She

said she also searched George‟s car but found no gun, although she too

observed the shell casing on the floorboard. (R.R. 6, p. 66). She    testified

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                           6
that when the towing company driver called later to report that he had found

a loaded gun magazine in the car‟s front seat, she went to the tow company

to retrieve the magazine. It contained .40 caliber ammunition. (R.R. 6, pp.

78-79).

      Sam Dill, the tow truck operator, testified that he towed the

impounded car to his company‟s lot. That night, he said, during            his

inventory of the car‟s contents as part of his company‟s business practice, he

found a loaded gun magazine. (R.R. 6, pp. 88-89). The next day, Dill said,

when he went to move the car to the impound section of his lot, he noticed a

bulge between the seat cushions and springs on the driver‟s side front seat.

On examining the bulge, Dill said that he discovered a .40 caliber handgun

hidden in that location. He said he immediately called the police. (R.R. 6,

p. 90).

      Lanell Waley, a forensic scientist with the Texas Department         of

Public Safety, testified that she analyzed various pieces of evidence

submitted by the Killeen police. She reported that she could not say if the

bullet fragments recovered from the home that had been fired upon came

from the gun recovered from George‟s car, but that they were consistent

with that caliber bullet. (R.R. 6, p. 21). She also testified that her tests



Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                          7
confirmed that the shell casing found in the floorboard had, in fact, been

fired from the gun recovered from George‟s car. (R.R. 6, pp. 20, 21, 25).

      Tim Manges, an officer with the narcotics division of the Killeen

Police Department, testified that he was working a case on the occupants of

the house at 3808 Landon Lane when he learned that it had been fired upon.

(R.R. 7, p. 28). Interested in the car that George had been driving, he drove

to the impound yard to inspect it. When he got there, the tow driver showed

him a gun in its hidden location, and Manges recovered the gun the subject

of the offense. (R.R. 7, pp. 28-29). Manges testified that he had not been

aware, before his trip to view the car that the tow driver had called another

department in his office to report that he had found the gun in the car. (R.R.

7, pp. 39, 42). Manges also said that Christina Dawson, the focus of his

investigation for illegal narcotics activity at the Londan Lane home which

had been fired upon, was on the run and had not been seen since shortly after

the shooting incident. Her boyfriend, who lived with her at the address at

the time of the shooting, had been arrested and was in federal custody on un-

related charges. (R.R. 7. P. 38). When he was recalled by the defendant,

Manges testified that the gun recovered from George‟s car and the subject of

the offense was never checked for latent fingerprints. (R.R. 7, p. 65).

      George did not testify.

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                           8
                    SUMMARY OF THE ARGUMENT

             Very clearly, the State proved that George had a previous

conviction for robbery from 2009. However, the State did not produce

evidence of the date of his release from confinement from that conviction.

Neither did his prior judgment nor any other evidence adduced at trial prove

beyond a reasonable doubt that he was released from supervision for the

conviction under community supervision, parole, or mandatory supervision,

within five years of the date of the anniversary of that conviction. See

Fagan v. State, 362 S.W.3d 796, (Tex. App. – Texarkana 2012, pet.

ref’d). Therefore the evidence was legally insufficient to support his

conviction for unlawful possession of a firearm by a felon.

                                     ISSUE

      The evidence is legally insufficient to support George‟s conviction

because the State did not prove the actual date of his release from

confinement resulting from his 2009 conviction for robbery.

               STATEMENT OF PERTINENT EVIDENCE

Indictment

      George‟s indictment alleged in pertinent part that he did “on February

10, 2014, ... intentionally and knowingly possess a firearm before the fifth

anniversary of (his) release from confinement or parole following conviction
Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                             9
of the felony offense of Robbery on January 29, 2009”. The indictment‟s

second paragraph alleged that he had previously been convicted of burglary

of a habitation. (C.R. 1, p. 5).

Trial Evidence

      The State‟s proof concerning George‟s prior conviction included a

judgment showing that he was convicted of robbery on January 29, 2009.

See State‟s Exhibit 1. The judgment reflects that his punishment was

assessed at three (3) years confinement in the Texas Department of Criminal

Justice‟s Institutional Division. Karl Ortiz, a Bell      County     District

Attorney‟s Investigator and fingerprint expert, identified the judgment and

analyzed fingerprint evidence which linked George to the judgment. (R.R.

6, pp 15 et. seq.) A pen pack for George was also used for fingerprint

comparison and reference was made to George‟s picture contained in the pen

pack. (R.R. l 6, p 26) and see State‟s Exhibit 2.

                                   ARGUMENT

Standard of Review

      In an appellate court‟s due-process review of the sufficiency of the

evidence to support a conviction, a reviewing court views all of the evidence

in the light most favorable to the verdict to determine whether any rational

trier of fact could have found the essential elements of the crime beyond a

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                        10
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). The essential elements of the crime are those defined by

the hypothetically correct jury charge. Geick v. State, 349 S.W.3d 542, 545

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)). A reviewing court, thus, measures the sufficiency of the

evidence by the essential elements as defined by the hypothetically correct

charge. Cada v. State, 334 S.W.3d 776, 773 (Tex. Crim. App. 2011). A

hypothetically correct jury charge “accurately 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.” Malik,

953 S.W.2d at 240. [B]efore something may be an element of the offense in

the hypothetically correct jury charge, it must be „authorized by the

indictment.‟” Cada, 334 S.W.3d at 773 (footnotes omitted).

Applicable Law

      “[T]o support a conviction for possession of a firearm, the State must

show (1) that the accused exercised actual care, control, or custody of the

firearm, (2) that he was conscious of his connection with it, and (3) that he

possessed the firearm knowingly or intentionally.” Nguyen v. State, 54

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                            11
S.W.3d 49, 52 (Tex. App. – Texarkana 2001, pet. ref’d). TEX. PENAL

CODE §1.07(A) (39) (West 2011)

      To prove unlawful possession of a firearm by a felon, the State is

required to prove that the person (1) possessed a firearm (2)            “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.” TEX. PENAL CODE §46.04(a) (1) (West 2011).

      Thus, here, to prove George committed the offense of felon in

possession of a firearm, the State had to establish beyond a reasonable doubt

that he had previously been convicted of a felony offense and possessed a

firearm after the conviction and before the fifth anniversary of his release

from confinement or community supervision, parole, or             mandatory

supervision, whichever was later.

Analysis

      The State undoubtedly proved through the testimony of its fingerprint

expert, Officer Karl Ortiz, and State‟s Exhibit 1 that George had been

convicted of an offense in January, 2009. However, the State failed to prove

any date of release from confinement of any kind from that conviction.



Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                          12
       George‟s indictment alleged an offense date of February 10, 2014,

which is more than five years after his date of conviction. In Fagan v. State,

362 S.W.3d 796, 8900 (Tex. App. – Texarkana 2012, pet. ref’d), the

appellate court found that because the firearm offense occurred more than

five years from Fagan’s felony conviction, it was necessary for the State to

prove the date of his release from confinement or supervision. Because the

State had filed to do so, the court found the evidence insufficient to support

his conviction for unlawful possession of a firearm, as alleged in the

indictment. Id. at 801. As in Fagan, here George was in possession of a

firearm when he was outside the “minimum period.”1

       In keeping with Fagan and her sister courts which have addressed the

issue, the hypothetically correct jury charge in this case would (and here,

did) obligate the State to prove that George was previously convicted of a

felony offense and that he possessed a firearm after that conviction and

before the fifth anniversary of his release from confinement. In this case, as

noted above, the State‟s evidence in regard to his conviction and release

from confinement consisted of a certified copy of a judgment showing

George‟s conviction and a resulting three year jail sentence.                 Evidence

1
 The appellate court in Fagan referred to the five-year period following conviction as the
“minimum period that a felon will be prohibited from possessing a firearm.” 362 S.W.3d
at 800.

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                                     13
adduced in trial showed his subsequent arrest in this case came over five

years after that conviction. The judgment provided no evidence of the date

of his release from confinement for the prior offense. The pen packet from

his prior conviction was used to bolster other fingerprint evidence to support

proof of that conviction. See State‟s Exhibit 2. That latter exhibit offered

evidence of a release date only if the jury speculated on the meaning of

certain language contained within the pen packet which was offered not for

that purpose but only to bolster the State‟s identification of George.

      In final argument, the State argued:

             “But, was it before the fifth anniversary of his release

      from confinement or parole following conviction of a felony?

      Well, he was convicted in 2009. And what did he tell you right

      on videotape? I‟m on parole. I wouldn‟t have a gun. You

      probably remember that. So if he says he was on parole, it‟s

      certainly within five years of him being discharged from parole.

      Even if you do the math, conviction in 2009 with three years in

      prison, and then get out, on parole five years after that, we‟re

      within the time frame any way you look at it. This is simply

      not an issue.”

                                                   --(R.R. 7, p. 89).

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                         14
      The State‟s invitation in final argument for the jury to “do the math”

was remarkably similar to the argument made in Saldana v. State, 418

S.W.3d 722 (Tex. App. – Amarillo 2013). In Saldana, the State‟s evidence

included a certified copy of a judgment showing appellant‟s April 30, 2007

felony conviction, and the resulting two-year state jail sentence. Evidence

showed he was arrested in possession of a firearm on September 19, 2012,

some five years and five months after his felony conviction, but the 2007

judgment provided no evidence of the date appellant was released from

confinement after the conviction. Neither did the record contain any other

evidence of the date of his release. In finding the evidence insufficient to

convict appellant of the charged offense, the appellate court noted that the

prosecutor‟s invitation to “do the math” and infer the date of appellant‟s

release from confinement from the date of the 2007 conviction, the length of

sentence, and jail credit offered the jury an unworkable formula requiring

surmise and speculation. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim.

App. 2007) (conclusion based on speculation not sufficient based on facts or

evidence to support a finding beyond reasonable doubt). Moreover, here the

State‟s proof of a release date was not made any clearer from George‟s

statement at his arrest that he could not possess a firearm because he was

“on parole”. That follows because his statement made no reference to the

Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                       15
particular robbery conviction alleged here as part of the State‟s indictment.

In other words, his statement, standing alone, must also lead to jury

speculation on whether he was referring at that moment to a supervision

involving the particular conviction alleged here from which the five year

“minimum period” had to be calculated to convict or, perhaps, from some

other conviction not alleged. See generally, Fagan, 362 S.W.3d at 800, n.1,

citing Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) and see

Saldana, 418 S.W.3d at 726.

Conclusion

      The evidence in this case, even when viewed in the light most

favorable to the verdict, is insufficient for a rational trier of fact to have

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

Neither the evidence adduced nor the State‟s argument asking the jury to

infer the missing evidence sufficiently supported the jury‟s verdict. In light

of that the verdict and sentence must be reversed.

                                   PRAYER

      WHEREFORE, Mr. George prays that this Court of Appeals reverse

the judgment of the trial court and order an acquittal, or, in the alternative,

enter such other orders as may be appropriate with its decision herein.



Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                           16
                                         COPELAND LAW FIRM
                                         P.O. Box 399
                                         Cedar Park, TX 78613
                                         Mobil/Test: 512.897.8126
                                         Fax: 512.215.8114
                                         e-mail: ecopeland63@yahoo.com

                                         By:       /s/   Erika Copeland
                                                         Erika Copeland
                                                         State Bar No. 16075250
                                                         Attorney for Appellant


                    CERTIFICATE OF SERVICE AND OF
                     COMPLIANCE WITH RULE 9

      This is to certify that on January 26, 2015, a true and correct copy of the
above and foregoing document was served on Bob Odom, Assistant District
Attorney of Bell County, P.O. Box 540, Belton, Texas 76513, in accordance with
the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in
compliance with Rule 9 of the Texas Rules of Appellate Procedure and that
portion which must be included under Rule 9.4(i)(1) contains 3315 words.


                                                   /s/   Erika Copeland
                                                         Erika Copeland




Christopher Anthony George v. The State of Texas
Cause No. 03-14-00673-CR
Brief of Appellant                                                            17
