                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                          No. 07-13-00285-CR


                              SHON MONROE RAINS, APPELLANT

                                                   V.

                                THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 251st District Court
                                       Randall County, Texas
                     Trial Court No. 24,083-C, Honorable Ana Estevez, Presiding

                                          October 17, 2014

                                  MEMORANDUM OPINION
                       Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Appellant, Shon Monroe Rains, appeals his conviction by jury for the offense of

unlawful possession of a firearm by a felon,1 and sentence of fourteen years’

incarceration in the Institutional Division of the Texas Department of Criminal Justice, 2

and $250 fine. We will affirm.




        1
            See TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011).
        2
          The indictment alleged that appellant had been previously convicted of felony possession of a
controlled substance with intent to deliver. At trial, appellant pled true to this punishment enhancement
                              Factual and Procedural Background


       Appellant and his friend, Mariah McMillan-Luedke, resided together in a trailer

home. Around December 31, 2012, Luedke bought a pink camouflage rifle. At some

point thereafter, Luedke brought the rifle to the trailer. According to Luedke, appellant

got upset about the rifle being in the trailer since, as a felon, he was not permitted to

legally possess a firearm. As a result of their argument, on January 14, 2013, Luedke

took the rifle into the kitchen area of the trailer with the intention of taking the rifle out of

the trailer that night when she left. However, she forgot the rifle when she left. Luedke

left around 10 or 11 p.m., and stayed the night elsewhere.


       Kimberly McAnally, a friend of appellant, stayed overnight at the trailer on

January 14. She did not see Luedke on that night, but she did see the rifle “[l]aying

longways on the ground by the kitchen table” around 11 p.m. or midnight.                         As a

convicted felon herself, McAnally denied ever possessing or handling the rifle.


       In the morning of January 15, deputies from the Randall County’s Sheriff’s

Department went to the trailer to serve an arrest warrant on appellant for a separate

charge.     After an officer knocked on the front door and announced the sheriffs’

presence, the back door of the trailer slammed shut and then immediately sprang open.

The officers at the back of the trailer saw McAnally and appellant in the kitchen area of

the trailer through the open door. Officers ordered appellant out of the residence, he

complied, and was placed under arrest.




allegation, and he raises no issue on appeal relating to this punishment enhancement allegation. See id.
§ 12.42(a) (West Supp. 2014).

                                                   2
       After appellant was secured, officers entered the residence while McAnally went

to get her identification. While the officers awaited McAnally’s return, one of the officers

noticed the pink rifle “leaning up against the kitchen cabinets” about two feet from where

appellant was initially seen. Officers took photographs of the position of the rifle and

then seized the rifle.


       On February 6, 2013, appellant was indicted for unlawful possession of a firearm

by a felon.    The indictment also included an enhancement paragraph alleging that

appellant had been previously convicted of the offense of possession of a controlled

substance with intent to deliver. A jury trial was held on August 19-21. The jury found

appellant guilty of the indicted offense and sentenced appellant to fourteen years

incarceration and a $250 fine. Appellant timely filed a motion for new trial that was

overruled by operation of law. Appellant timely filed notice of appeal.


       By three issues, appellant appeals. By his first issue, appellant contends that the

evidence is insufficient to establish appellant’s possession of the rifle. By his second

issue, appellant contends that the jury charge authorized the jury to convict appellant

based on the result of his conduct when the charged offense is a nature of conduct

offense. Finally, by his third issue, appellant contends that the jury charge error allowed

the jury to convict appellant without being unanimous.


                               Sufficiency of the Evidence


       By his first issue, appellant contends that the evidence was insufficient to

establish that appellant possessed the rifle. Specifically, appellant contends that the



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evidence did not show enough affirmative links between appellant and the rifle to

establish his possession of the rifle.


       In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


       To prove the offense of possession of a firearm by a felon, the State was

required to prove that appellant: (1) exercised care, control, or custody over the firearm;

(2) was conscious of his connection to the firearm; and (3) knowingly possessed the

firearm. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc).

                                             4
An accused’s knowing possession of a firearm can be established by evidence which

affirmatively links him to the firearm. See id. The evidence must rise to the level that

the connection between the firearm and the accused is more than just fortuitous. See

id.


      A nonexclusive list of factors that may establish a link between a
      defendant and firearms found inside a house which was not in the
      defendant's exclusive control includes whether: (1) the defendant was
      present at the time of the search; (2) the defendant was the owner of or
      had the right to control the location where the firearm was found; (3) the
      firearm was in plain view; (4) the defendant was in close proximity to and
      had access to the firearm; (5) firearms or other contraband was found on
      the defendant; (6) the defendant attempted to flee; (7) conduct by the
      defendant indicated a consciousness of guilt, including extreme
      nervousness or furtive gestures; (8) the defendant had a special
      connection or relationship to the firearm; (9) the place where the firearm
      was found was enclosed; and (10) affirmative statements connected the
      defendant to the firearm, including incriminating statements made by the
      defendant when arrested.

Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011) (op. on

reh’g), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).


      In the present case, McAnally testified that she and appellant stayed the night in

the trailer on January 14, 2013.     Her testimony was that she saw the rifle laying

“longways on the ground by the kitchen table,” Luedke was not at the trailer after

McAnally arrived around 11 p.m. on January 14, and McAnally never touched the rifle.

When officers entered the trailer in the morning of January 15, they discovered the rifle

leaning up against the kitchen cabinet and within arm’s reach of where appellant was

standing when he was first seen. Thus, the evidence would allow a reasonable jury to

conclude that, at a minimum, appellant picked the rifle up from the ground and leaned it

up against the kitchen cabinets. In order to do so, appellant had to have exercised


                                            5
some degree of care, custody, and control over the rifle. His connection to the rifle

would have been conscious since, presumably, he moved the rifle out of safety

concerns. Finally, this evidence is sufficient to establish that appellant’s possession of

the rifle was knowing, regardless of any analysis of the presence of affirmative links.

This is because the evidence in this case directly establishes that appellant knowingly

possessed the rifle and, therefore, establishing that appellant constructively possessed

the rifle due to the presence of affirmative links between him and the rifle is

unnecessary. After reviewing this evidence in the light most favorable to the verdict, we

conclude that the evidence was sufficient to allow a rational trier of fact to have found

the essential elements of the offense of unlawful possession of a firearm by a felon

beyond a reasonable doubt.3 See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at

912.


        Because the evidence is sufficient to support appellant’s conviction for

possession of a firearm by a felon, we overrule appellant’s first issue.


                                          Result of Conduct


        Appellant’s second issue contends that the jury charge authorized the jury to

convict appellant based on the result of his conduct when the charged offense is a

nature of conduct offense. His third issue contends that this claimed jury charge error

allowed the jury to convict appellant without being unanimous.                     Because these two

issues rely on the same premise—specifically, that the jury charge authorized the jury to

        3
          While the evidence is sufficient to establish that appellant possessed the rifle, whether evidence
of this possession should have led to the exercise of prosecutorial discretion in charging appellant is not
before this Court. See Garrett v. State, No. 05-99-00242-CR, 2000 Tex. App. LEXIS 511, at *11 (Tex.
App.—Dallas Jan. 24, 2000, pet. ref’d).

                                                     6
convict appellant based on the result of his conduct—we will address these issues

together.


       Appellant contends that the evidence that appellant picked the rifle up from its

position lying on the ground by the kitchen table and moved it to a position leaning

against the kitchen cabinets is based on the result of appellant’s conduct. As such,

appellant contends that this evidence does not provide a proper basis upon which to

convict appellant. The act that is criminalized in the offense of unlawful possession of a

firearm by a felon is possession. See Brown, 911 S.W.2d at 747. The jury charge in

this case authorized the jury to convict appellant for intentionally or knowingly

possessing the rifle. This is proper. The jury was not authorized to convict appellant for

placing the rifle where he placed it, the result of his possession, but rather the jury was

authorized to convict appellant for possessing the rifle.         As addressed above, the

evidence was sufficient to allow a rational jury to conclude that appellant possessed the

rifle, at a minimum, while he moved it from the floor to its position leaning against the

kitchen cabinet.    That the result of appellant’s possession was some evidence of

appellant’s possession does not change the fact that the jury charge properly required

the jury to find that appellant “intentionally or knowingly possess[ed] a firearm . . . .”


       Because the jury charge did not authorize the jury to convict appellant of

possession of a firearm based on the result of his conduct, we overrule appellant’s

second and third issues.




                                               7
                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.




                                          Mackey K. Hancock
                                              Justice


Do not publish.




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