                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00178-CR


BRANDON LEE MANUEL                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                        TRIAL COURT NO. CR13238

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                           MEMORANDUM OPINION1

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      Appellant Brandon Lee Manuel appeals his convictions for aggravated

assault by threat with a deadly weapon and unlawful possession of a firearm by a

felon. In two points, he challenges the sufficiency of the evidence to support his

convictions. We affirm.




      1
          See Tex. R. App. P. 47.4.
                                   Background

      After jet skiing on Lake Granbury, Randy James and his fiancée, Tammy

Thompson, returned to James’s home on a canal just off the lake. While James

was docking the jet ski, he and Thompson heard someone yelling for help across

the canal. Thompson started swimming towards the person but got tired. James

dove in and swam across the canal.

      James testified that when he got to the other side of the canal, he saw

appellant in the middle of a yard.     James asked, “Are you okay?    I thought

somebody was drowning.” Appellant replied, “I’ve been in prison 11 years,” and

started walking quickly towards the dock. As appellant got closer to James,

James realized appellant had a gun in the waistband of his shorts. Appellant

pointed the gun at James and said, “This is your unlucky day. You’re fixing to

meet your maker. You’re going to die.” James testified that the gun was black

and looked like a .22 or .38 snubnose. He further testified that he owned guns

like the one appellant had. On cross-examination, he testified that he could not

tell if the gun was a revolver or a semi-automatic.

      James backed away slowly at first and then swam as fast as he could back

to his dock. When he got back to his dock, James told Thompson to get out of

the water because appellant had a gun and was crazy or on something.

Thompson testified that as James was swimming back, he yelled to her, “Turn

around. He’s crazy. He’s got a gun. He tried -- he threatened to shoot me.”




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Thompson testified that appellant started to yell at her and that he had “what

looked like a gun in his belt.”

      Mike Batts, who owned a lake house in the neighborhood, testified that he

was doing yard work in his front yard when he heard someone yelling for help.

According to Batts, his house is approximately seventy-five yards from James’s

house. Batts ran around to his backyard, grabbed a pair of binoculars, looked

through them, and saw appellant looking down at the water where James was;

appellant appeared upset. Batts testified that it looked like appellant was having

a heated discussion or argument with James and that the handle of a pistol was

sticking out of appellant’s shorts. Batts could only see the handle of the gun; he

could not see the barrel but said “it was a definite gun.”      Batts never saw

appellant take the gun out of his waistband.

      Batts saw Thompson get out of the water and run into the house with

James behind her. Batts testified that James looked scared and upset. On

cross-examination, Batts admitted that he could not hear what James and

appellant were saying to each other, but their voices had an angry tone. He also

admitted that he could not tell from a distance whether the gun was a semi-

automatic or a revolver.

      James testified that after he got out of the water, appellant continued to

wave the gun around, and James thought appellant was going to come across

the canal. Thompson called 911. Thompson testified that while she on the

phone with 911, appellant was pacing and hollering; sometimes, appellant had


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the gun at his side, and at other times, he was pointing the gun towards James

and Thompson. Thompson described the gun as black and rectangular; she said

it was not a revolver.

       While on the phone with 911, Thompson saw appellant climb up and down

a tree and then walk up to a house and disappear. Jessica Montgomery was in

the house with her two children. Montgomery testified that she heard yelling and

cussing outside. She looked out the window and saw appellant standing at the

edge of a retaining wall, yelling at her neighbor who was in the water.

Montgomery testified that she saw a black gun tucked into appellant’s waistband

and that he kept yelling, cussing, and acting like he was going to reach for the

gun.    Montgomery was scared and called 911.             On cross-examination,

Montgomery testified that she got “a fairly good look” at the gun and that when

the 911 operator asked whether the gun was a pistol or a rifle, Montgomery said

she did not know.        Montgomery did not see appellant pull the gun from his

waistband or hear him directly threaten her neighbor.

       Thompson testified that after appellant disappeared behind the house

where Montgomery and her children were, she saw a silver truck drive away.

Charles Etheridge, whose daughter owns a house in the neighborhood, testified

that he was outside of her house working on a boat when appellant stopped the

silver truck he was driving and got out to talk to Etheridge about his boat.

Appellant started talking strangely about Jesus, and after appellant told Etheridge

that Etheridge was going to die that day because someone was coming to kill


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him that night, Etheridge went inside his home and locked the door. Etheridge

testified that appellant did not show him a firearm or point one at him and that he

did not see any weapons on appellant’s person.

      Rachel Carter, a neighborhood resident, testified that a truck drove slowly

through her front yard and that appellant jumped out of the truck right before it

went into the lake.      Carter asked appellant if he was okay, but appellant

appeared to be having a conversation with someone who was not there. He

said, “I’m Jesus and you’re Jesus and we’re all Jesus.” Carter called 911 and

handed appellant her phone so that he could talk to the operator about his

vehicle. Carter testified that when she handed the phone to appellant, she did

not notice a weapon of any kind and that appellant did not threaten her.

      When Randy Johnston, a lake ranger with the Brazos River Authority,

arrived on the scene, he secured appellant and frisked him. Ranger Johnston

testified that did not find any weapons on appellant. Deputy Paul Knight with the

Hood County Sherriff’s Office arrested appellant. Deputy Knight testified that he

helped search the area (including the tree appellant climbed) and appellant’s

truck but did not find a gun. William Watt, an investigator with the Hood County

Sheriff’s Office, led a team of seven or eight divers that searched the lake for the

gun for approximately eleven hours over a two-day period. The team did not find

the gun.    Ranger Johnston and Investigator Watts both testified that it was

difficult to find an object like a gun in Lake Granbury. No gun was introduced into

evidence at the trial.


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      The jury found appellant guilty of aggravated assault by threat with a

deadly weapon and unlawful possession of a firearm by a felon. Appellant pled

true to the enhancement and habitual allegations, and the jury assessed

punishment at seventy years’ confinement in the Institutional Division of the

Texas Department of Criminal Justice for each offense. The trial court sentenced

appellant accordingly, with the sentences to run concurrently.

                                Standard of Review

      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

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

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979).         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.

Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136

S. Ct. 198 (2015).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). 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.           See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we


                                          6
determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict.   Murray, 457 S.W.3d at 448.       We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49.

Sufficiency of the Evidence that Appellant Used or Exhibited a Deadly Weapon

      In his first point, appellant complains that the evidence is insufficient to

support his conviction for aggravated assault by threat with a deadly weapon

because there was insufficient evidence that he used or exhibited a handgun

when he threatened James. Specifically, he argues that the jury’s finding that he

had a deadly weapon is based on speculation by James, Thompson, Batts, and

Montgomery “of what they saw from a distance or under the influence,[2] without

any evidence of finding a gun, examining a gun, or without any consistent

description of a gun.” He further asserts that the gun could have been a BB gun,

an Airsoft gun, or a cell phone.

      To prove aggravated assault by threat, the State must prove that the

person (1) intentionally or knowingly threatened another with imminent bodily

injury and (2) used or exhibited a deadly weapon during the commission of the

assault. Tex. Penal Code Ann. § 22.01(a)(3) (West Supp. 2016), § 22.02(a)(2)

      2
        Thompson testified that she thought she and James had consumed
alcohol earlier in the day on the day of the incident “but not much.” She knew
that they “had a few” but could not remember how many. James testified that he
could not remember having anything to drink that day and was not aware that
Thompson had anything to drink.

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(West 2011). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A) (West

Supp. 2016) (defining “deadly weapon” as “a firearm or anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily

injury”).

       James testified that appellant pointed a black gun at him that looked like a

.22 or .38 snubnose and said, “This is your unlucky day. You’re fixing to meet

your maker. You’re going to die.” He further testified that he owned guns like the

one appellant had.      Thompson, Batts, and Montgomery also testified that

appellant had a gun. The jury, as the sole judge of the weight and credibility of

the evidence, weighed and considered these witnesses’ distance from the

incident, their varying descriptions of the gun, and, as to Thompson and James,

whether they had been drinking that day. Based on the evidence, the jury could

draw the reasonable inference that appellant used or exhibited a firearm while

threatening James.     See Price v. State, 227 S.W.3d 264, 266 (Tex. App.—

Houston [1st Dist.] 2007, pet. dism’d) (“[A]bsent any specific indication to the

contrary at trial, the jury may draw the reasonable inference or make the

reasonable deduction that the ‘gun’ used in the commission of a crime was a

firearm.”); Rogers v. State, 795 S.W.2d 300, 303 (Tex. App.—Houston [1st Dist.]

1990, pet. ref’d) (holding that cashier’s testimony that “she saw ‘enough of it to

know it was a gun,’” “was sure it was a gun,” that it was a silver handgun, and

that the gun used looked the same or similar to a photograph of a pistol the State

showed the cashier at trial was sufficient evidence to show that appellant


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possessed a firearm during robbery); see also Barrett v. State, No. 02-13-00200-

CR, 2014 WL 2538803, at *4 (Tex. App.—Fort Worth June 5, 2014, pet. ref’d)

(mem. op., not designated for publication) (“The complainant testified that the

object thrust into her side was a gun, that it was silver, and that it looked like the

guns worn by police officers. Based on this testimony, the jury could draw the

reasonable inference that appellant used a real gun.”).           Additionally, their

testimony was sufficient to prove appellant used or exhibited a firearm even

though the gun was never found. See Carter v. State, 946 S.W.2d 507, 509–11

(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (holding that even though gun

was never recovered, victims’ testimony was sufficient to prove defendant used a

firearm).

      Viewing all the evidence in the light most favorable to the verdict, we

conclude and hold that a rational trier of fact could have found that appellant

used or exhibited a deadly weapon. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. We overrule appellant’s first point.

      Sufficiency of the Evidence that Appellant Possessed a Firearm

      In his second point, appellant complains that the evidence was insufficient

to support his conviction for unlawful possession of a firearm because there was

insufficient evidence that he possessed a firearm. Specifically, appellant argues

that the evidence is insufficient because “no firearm of any type was ever found

or examined” and there was no examination of the alleged firearm to determine

whether it was a firearm or a BB gun, Airsoft gun, or a cell phone. Appellant also


                                          9
questions the reliability of the witnesses who testified that they saw him with a

gun and points out some witnesses testified that he did not have a gun.

      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 Ann. § 46.04(a)(1) (West 2011). “‘Firearm’ means any

device designed, made, or adapted to expel a projectile through a barrel by using

the energy generated by an explosion or burning substance or any device readily

convertible to that use.” Id. § 46.01(3) (West Supp. 2016).

      The penal code defines “possession” as “actual care, custody, control, or

management.” Id. § 1.07(a)(39). A person commits a possession offense only if

he voluntarily possesses the prohibited item.         Id. § 6.01(a) (West 2011).

Possession is voluntary 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. Id. § 6.01(b). Even if the firearm is not found on the

defendant’s person or is not seen in the defendant’s exclusive care, custody,

control, or management, the State can still prove possession by offering

additional, independent facts and circumstances that link the defendant to the

firearm. Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.––Dallas 2004, no

pet.); see Villarreal v. State, Nos. 02-07-00329-CR, 02-07-00330-CR, 2009 WL


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671042, at *1 (Tex. App.—Fort Worth Mar. 12, 2009, pet. ref’d) (mem. op., not

designated for publication) (“The . . . links doctrine also applies to the possession

of firearms.”).

      James testified appellant pointed a black gun at him that looked like a .22

or .38 snubnose; Thompson, Batts, and Montgomery also testified that appellant

had a gun, even though they gave varying descriptions of the gun. Again, the

jury, as the sole judge of the weight and credibility of the evidence, weighed and

considered these witnesses’ distance from the incident, their varying descriptions

of the gun, and, in the case of Thompson and James, whether they had been

drinking that day. Viewing this evidence in a light most favorable to the verdict, a

rational trier of fact could have found beyond a reasonable doubt that appellant

possessed a firearm. See Tapps v. State, 257 S.W.3d 438, 445–46 (Tex. App.—

Austin 2008) (op. on reh’g), aff’d, 294 S.W.3d 175 (Tex. Crim. App. 2009)

(holding eyewitnesses’ testimony purporting to have seen defendant with firearm

sufficient to prove possession even though firearm was never recovered); see

also Hutchings v. State, 333 S.W.3d 917, 920–22 (Tex. App.—Texarkana 2011,

pet. ref’d) (holding that evidence was sufficient to show that defendant

possessed a firearm when witnesses identified defendant, said they saw him with

a gun, and described the gun); see also Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. We overrule appellant’s second point.




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                                   Conclusion

      Having overruled both of appellant’s points, we affirm his convictions.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

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

DELIVERED: December 22, 2016




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