                                                                           ACCEPTED
                                                                       12-15-00007-CR
                                                          TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                  8/3/2015 11:04:16 AM
                                                                         CATHY LUSK
                                                                                CLERK




             NUMBER 12-15-00007-CR                     FILED IN
                                                12th COURT OF APPEALS
                                                     TYLER, TEXAS
                                                8/3/2015 11:04:16 AM
IN THE TWELFTH DISTRICT COURT OF                APPEALS
                                                     CATHY S. LUSK
                                                         Clerk
              TYLER, TEXAS

       CHRISTOPHER EARL THURMAN,
                       Appellant

                            v.

              THE STATE OF TEXAS,
                        Appellee

    From the 7th District Court of Smith County, Texas
           Trial Cause Number 007-1224-14


                   STATE’S BRIEF


     ORAL ARGUMENT NOT REQUESTED

                 D. MATT BINGHAM
                Criminal District Attorney
                 Smith County, Texas

                  AARON REDIKER
               Assistant District Attorney
         State Bar of Texas Number 24046692
          Smith County Courthouse, 4th Floor
                  Tyler, Texas 75702
                Phone: (903) 590-1720
                 Fax: (903) 590-1719
          Email: arediker@smith-county.com
                                             TABLE OF CONTENTS


Index of Authorities .................................................................................................. 2 


Statement of Facts .................................................................................................... 3 


Summary of Argument ............................................................................................. 4 


I.ISSUE ONE: The logical force of the evidence linking appellant to the revolver found
in his motel room was sufficient to show actual care, custody, control, or management
of the firearm. .......................................................................................................... 5 
Standard of Review................................................................................................... 5 
Argument ................................................................................................................. 6 


II.ISSUES TWO AND THREE: Appellant failed to preserve any error in the trial court’s
alleged failure to consider the full range of punishment, and even if he had, deferred
adjudication community supervision was unavailable to him. .................................. 10 
Argument ............................................................................................................... 10 


Certificate of Compliance....................................................................................... 12 


Certificate of Service .............................................................................................. 13 




                                                             1
                                          INDEX OF AUTHORITIES

Texas	Cases	

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ........................................ 5
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) .......................................... 7
Hawkins v. State, 89 S.W.3d 674 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) . 6
Hernandez v. State, 538 S.W.2d 127 (Tex. Crim. App. 1976)................................... 7
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................ 6
James v. State, 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)... 6
Jones v. State, 338 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2011)................ 7, 9
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................... 5
Reed v. State, 644 S.W.2d 479 (Tex. Crim. App. 1983) .......................................... 11
Stout v. State, 426 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........ 6
Sutton v. State, 328 S.W.3d 73 (Tex. App.—Fort Worth 2010, no pet.) .................... 8
Teixeira v. State, 89 S.W.3d 190 (Tex. App.—Texarkana 2002, pet. ref’d) ............. 10
Villegas v. State, 871 S.W.2d 894 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d) .. 9
Washington v. State, 71 S.W.3d 498 (Tex. App.—Tyler 2002, no pet.)................... 10
Willis v. State, 192 S.W.3d 585 (Tex. App.–Tyler 2006, pet. ref’d) (mem. op.) ........ 9
	
Texas	Statutes	
Tex. Code Crim. Proc. art. 42.12, § 5 ..................................................................... 11
Tex. Penal Code Ann. § 1.07 .................................................................................... 6
Tex. Penal Code Ann. § 6.01 .................................................................................... 6
	
Texas	Rules 
Tex. R. App. P. 33.1 ............................................................................................... 10
	
Federal	Cases 
Jackson v. Virginia, 443 U.S. 307 (1979).................................................................. 5




                                                          2
                            NUMBER 12-15-00007-CR


            IN THE TWELFTH DISTRICT COURT OF APPEALS
                          TYLER, TEXAS


                       CHRISTOPHER EARL THURMAN,
                                Appellant

                                           v.

                             THE STATE OF TEXAS,
                                   Appellee

               From the 7th District Court of Smith County, Texas
                      Trial Cause Number 007-1224-14


                                 STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant Criminal

District Attorney, respectfully requesting that this Court overrule appellant’s issues and

affirm the judgment of the trial court in the above-captioned cause.


                                STATEMENT OF FACTS

   Appellant has stated the essential nature of the proceedings and the evidence

presented at trial (Appellant's Br. 3-5). In the interest of judicial economy, any other




                                            3
facts not mentioned therein that may be relevant to the disposition of appellant's issues

will be discussed in the State's arguments in response.


                               SUMMARY OF ARGUMENT

   In a bench trial for the offense of unlawful possession of a firearm by a felon, the

evidence showed the following links between appellant and the revolver found in his

motel room: appellant’s presence at the time of the search, the firearm’s proximity

and accessibility to appellant, his right to control and possess the location where the

firearm was found, the presence of other contraband, a special connection or

relationship between appellant and the firearm, and that the firearm was found in an

enclosed space within his room. Viewing the evidence in the light most favorable to

the verdict, the logical force from these links was sufficient for a rational trier of fact

to have found beyond a reasonable doubt that appellant exercised care, custody, control,

or management over the revolver. While appellant also argues that the trial court

refused to consider the entire range of punishment, he failed to preserve any error for

review by not raising a timely objection at trial. Even if appellant had raised a timely

objection, the trial court made its finding of guilt following a bench trial on appellant’s

plea of “not guilty”, and appellant was therefore ineligible to receive deferred

adjudication community supervision.




                                            4
I. ISSUE ONE: The logical force of the evidence linking appellant to the
revolver found in his motel room was sufficient to show actual care, custody,
control, or management of the firearm.

                                STANDARD OF REVIEW

   Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443

U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

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

doubt." When conducting a legal sufficiency review, a reviewing court must ask

whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt, and not whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009). The same standard applies equally to circumstantial and

direct evidence. Id. When examining the evidence for legal sufficiency, a reviewing

court’s role is not to become a “thirteenth juror”, and it may not “re-evaluate the weight

and credibility of the record evidence” and thereby substitute its judgment for that of

the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Thus, “[t]he

reviewing court must give deference to the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences




                                            5
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson, 443 U.S. at 318-19) (internal quotation marks omitted).


                                     ARGUMENT

   In his first issue, appellant argues that the evidence linking him to the firearm

discovered during a consensual search of his motel room was legally insufficient to

support his conviction for unlawful possession of a firearm by a felon (Appellant’s Br.

7-13). “’Possession’ means actual care, custody, control, or management.” Tex. Penal

Code Ann. § 1.07(39) (West 2014). To constitute an offense, possession of the

prohibited item must be voluntary: “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(a), (b) (West 2014).

Because the firearm at issue was not found on appellant or in his exclusive possession,

the State was required to prove possession by affirmatively linking the firearm to the

appellant. Stout v. State, 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012,

no pet.). “The State may establish possession by proving an ‘affirmative link,’ which

demonstrates that the defendant was conscious of his connection with the weapon and

knew what it was.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d) (citing Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). A nonexclusive list of factors that may establish


                                           6
a link between a defendant and a firearm found inside a residence that was not in his

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), aff’d,

364 S.W.3d 854 (Tex. Crim. App. 2012). The number of links is not dispositive, “but

rather the logical force of all of the evidence, direct and circumstantial.” Evans v. State,

202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Furthermore, the absence of any of

the links listed above “is not evidence of appellant's innocence to be weighed against

evidence tending to connect appellant to the [contraband].” Hernandez v. State, 538

S.W.2d 127, 131 (Tex. Crim. App. 1976).

   Here, the evidence established at least six links between appellant and the firearm:

his presence at the time of the search, the proximity and accessibility of the firearm,

appellant’s right to control the location where the weapon was found, the presence of

other contraband in the motel room, a special connection or relationship between

appellant and the firearm, and that the firearm was found in an enclosed space. See


                                             7
Jones, 338 S.W.3d at 742. Appellant was present at the time of the search at

approximately eight o’clock in the evening at the Town House Motel in Tyler (V Rep.’s

R. at 59, 62). Moments before knocking on appellant’s door, Tyler Police officers

observed Brittany Stone, a theft suspect, enter appellant’s room at the motel (Id. at 60-

62). Appellant answered the door naked and told the officers that he had been sleeping

(Id. at 62). He stated that the room was his and gave them permission to enter and

arrest Ms. Stone (Id.). Appellant subsequently gave the officers consent to search his

motel room (Id. at 64, 66), and a .38 caliber revolver was discovered between the

mattress and box-spring of the bed where appellant had been sleeping (Id. at 73, 95,

97; State’s Exs. 22, 26). In addition to appellant’s presence at the scene during the

search and his close proximity to the weapon immediately before officers knocked on

his door, the motel manager later confirmed that appellant had rented the room a

couple of days before the search and “had been in the whole time.” (V Rep.’s R. at

104-05). Appellant thus had the right to control and possess the location where the

firearm was located. See Sutton v. State, 328 S.W.3d 73, 77 (Tex. App.—Fort Worth

2010, no pet.) (“As the State points out, the jury could have rationally inferred from

Sutton's statement of ownership or responsibility over the house that she could exercise

care, custody, and control over the house's contents, including the gun.”).




                                           8
   In his brief, appellant concedes that the revolver was found in an enclosed space

accessible to him—underneath the mattress of the only bed in the motel room

(Appellant’s Br. 12). Further, appellant had a special connection or relationship with

the firearm, as several rounds of .38 caliber ammunition were found in his nightstand

near the side of the bed where the revolver was located (V Rep.’s R. at 67,73, 95, 97-

98, 108). The ammunition was in a partially opened lockbox in the nightstand drawer,

along with a clear plastic baggie containing methamphetamine and a digital scale (Id.

at 67, 73, 95, 97-98, 107-08. See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.–

Tyler 2006, pet. ref’d) (mem. op.) (“whether the accused possessed other contraband

when arrested” can serve as an affirmative link). In fact, appellant had directed police

to that particular nightstand when asked for the keys to his vehicle parked outside (V

Rep.’s R. at 66-67, 69, 97). The green Kia sedan was registered to appellant and his

wife, and officers discovered a safe containing more .38 caliber ammunition,

appellant’s employee identification card from Goodwill Industries, and a Verizon bill

addressed to Sondra Thurman (Id. at 61, 75, 98-100, 113). See Jones, 338 S.W.3d at

742 (links showing special connection or relationship where one rifle found in room

with mail addressed to defendant and another gun found near his wallet and

prescription medication); Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.–Houston

[1st Dist.] 1994, pet. ref’d) (contraband’s location in relationship to the defendant's



                                           9
personal belongings can serve as a link). Viewing the evidence in the light most

favorable to the verdict, the logical force from these links was sufficient for a rational

trier of fact to have found beyond a reasonable doubt that appellant exercised care,

custody, control, or management over the firearm. Therefore, appellant’s first issue is

without merit and should be overruled.


II. ISSUES TWO AND THREE: Appellant failed to preserve any error in the trial
court’s alleged failure to consider the full range of punishment, and even if he
had, deferred adjudication community supervision was unavailable to him.

                                        ARGUMENT

   In his second and third alleged issues, appellant claims that the trial court erred by

finding him guilty following a bench trial on guilt/innocence, but before hearing

evidence on punishment, without considering the option of deferred adjudication

community supervision (Appellant’s Br. 14-17). As a preliminary matter, appellant

did not object to the trial court’s finding of guilt at the conclusion of the guilt/innocence

phase of trial (V Rep.’s R. at 130). A complaint that the trial court refused to consider

the entire range of punishment for an offense or refused to consider the evidence and

imposed a predetermined punishment is not preserved for review unless a timely

objection is raised at trial. Tex. R. App. P. 33.1(a); Teixeira v. State, 89 S.W.3d 190,

192 (Tex. App.—Texarkana 2002, pet. ref’d); Washington v. State, 71 S.W.3d 498,

499-500 (Tex. App.—Tyler 2002, no pet.).


                                             10
   Even had appellant preserved the alleged error, he was not eligible for deferred

adjudication community supervision. “[W]hen in the judge's opinion the best interest

of society and the defendant will be served, the judge may, after receiving a plea of

guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates

the defendant's guilt, defer further proceedings without entering an adjudication of

guilt, and place the defendant on community supervision.” Tex. Code Crim. Proc. art.

42.12, § 5(a) (West 2014). “The power to defer adjudication rests solely within the

discretion of the trial court. The availability of the option is limited to defendants who

plead guilty or nolo contendere.” Reed v. State, 644 S.W.2d 479, 483 (Tex. Crim. App.

1983). Appellant, with his counsel present, entered a plea of “not guilty” to the offense

as charged in the indictment (V Rep.’s R. at 48), and a bench trial on the issues of

guilt/innocence and punishment followed. As appellant was therefore not eligible to

receive deferred adjudication community supervision from the trial court, his second

and third alleged issues are without merit and should be overruled.




                                           11
                                      PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s alleged issues and affirm the judgment of the 7th District

Court of Smith County, Texas, in the above-captioned cause.

                                              Respectfully submitted,

                                              D. MATT BINGHAM
                                              Criminal District Attorney
                                              Smith County, Texas


                                              /s/ Aaron Rediker
                                              Aaron Rediker
                                              Assistant District Attorney
                                              SBOT #: 24046692
                                              100 North Broadway, 4th Floor
                                              Tyler, Texas 75702
                                              Office: (903) 590-1720
                                              Fax: (903) 590-1719 (fax)
                                              arediker@smith-county.com



                          CERTIFICATE OF COMPLIANCE	

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney

certifies that the word count for this document is 2,073 words as calculated by

Microsoft Word 2013.


                                              /s/ Aaron Rediker
                                              Aaron Rediker


                                         12
                              CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 31st day of July 2015, the State’s Brief

in the above-numbered cause has been electronically filed, and a legible copy of the

State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant, at

jhugglerlaw@sbcglobal.net.


                                                /s/ Aaron Rediker
                                                Aaron Rediker




                                           13
