                                                                                        ACCEPTED
                                                                                    06-14-00116-CR
                                                                         SIXTH COURT OF APPEALS
                                                                               TEXARKANA, TEXAS
                                                                                6/4/2015 2:46:09 PM
                                                                                   DEBBIE AUTREY
                                                                                             CLERK


               IN THE COURT OF APPEALS FOR THE
            SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                                FILED IN
                                                         6th COURT OF APPEALS
JOSEPH JOHN GRUBBS,              §                         TEXARKANA, TEXAS
   APPELLANT                     §                       6/4/2015 2:46:09 PM
                                 §                           DEBBIE AUTREY
                                                                 Clerk
    v.                           §            Nos. 06-14-00116-CR
                                 §                 06-14-00117-CR
                                 §
THE STATE OF TEXAS,              §
   APPELLEE                      §




                          STATE'S BRIEF



               FROM THE 354TH JUDICIAL DISTRICT COURT
                       HUNT COUNTY, TEXAS

                 TRIAL CAUSE NUMBERS 29,725 & 29,417
         THE HONORABLE RICHARD A. BEACOM, JUDGE PRESIDING



                                     NOBLE DAN WALKER, JR.
                                     District Attorney
                                     Hunt County, Texas

                                     KELI M. AIKEN
                                     First Assistant District Attorney
                                     P. 0. Box 441
                                     4th Floor Hunt County Courthouse
                                     Greenville, TX 75403
IF COURT GRANTS                      kaiken@huntcounty.net
APPELLANT'S REQUEST FOR              (903) 408-4180
ORAL ARGUMENT THEN                   FAX (903) 408-4296
ORAL ARGUMENT REQUESTED              State Bar No. 24043442
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

INDEX OF AUTHORITIES ................................................................................ ii-iii

SUMMARY OF THE STATE'S ARGUMENTS .................................................... 2

STATE'S RESPONSE TO POINT OF ERROR ONE ....................................... 3-12
    The evidence is legally sufficient to sustain Appellant's convictions
    for unlawful possession of a firearm by a felon and fraudulent use or
    possession of identifying information.


PRAYER AND CERTIFICATES .................................................................... 13-14
                                          INDEX OF AUTHORITIES



Federal Cases
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999), cert. denied, 529 U.S.
  1131 (2000) ............................................................................................................ 3

Jackson v. Virginia, 433 U.S. 307,319, 99 S.Ct. 2781 (1979) ................................. 3


State Cases
Chambers v. State, 711 S.W.2d 240 (Tex. Crim. App. 1986) .................................. 4

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ........................................ 3

Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) ......................................... 5

Fernandez v. State, 805 S.W.2d 451 (Tex. Crim. App. 1991) .................................. 4

Hines v. State, 978 S.W.2d 169 (Tex. App.-Texarkana, no pet.) ........................... 3

Johnson v. State, 23 W.W.3d 1 (Tex. Crim. App. 2001) .......................................... 3

Nguyen v. State, 54 S.W.3d 49 (Tex. App.-Texarkana 2001, reversed on other
 grounds) .................................................................................................................. 5

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ................................. 4

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) .................................. 3

Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim .App. 2006) ............................... 4

Statutes
TEX. PEN. C.§ 1.07(a)(39) (Vernon 2015) ................................................................ 4

TEX. PEN. C.§ 6.01(b) (Vernon 2015) ...................................................................... 4


                                                                                                                            11
TEX. PEN.   C.§ 32.51(b)(l) (Vernon 2015) .............................................................. 10

TEX. PEN.   C.§ 32.51 (b-1)(1) (Vernon 2015) ......................................................... 10

TEX. PEN.   C.§ 32.51 (c)(l) (Vernon 2015) ............................................................. 10

TEX. PEN.   C.§ 46.04(a)(1) (Vernon 2015) ................................................................ 4




                                                                                                         111
                 IN THE COURT OF APPEALS FOR THE
              SIXTH DISTRICT OF TEXAS AT TEXARKANA

JOSEPH JOHN GRUBS,                       §
   APPELLANT                             §
                                         §
      v.                                 §            Nos. 06-14-00116-CR
                                         §                 06-14-00117 -CR
                                         §
THE STATE OF TEXAS,                      §
   APPELLEE                              §




                                STATE'S BRIEF



TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the State of Texas, Appellee, in this appeal from Cause Nos.
29,725 & 29,417 in the 354th Judicial District Court in and for Hunt County, Texas,
Honorable Richard A. Beacom, Presiding, now before the Sixth District Comi of
Appeals, and respectfully submits this its brief to the Court in suppmi of the
judgment of sentence in the court below.




                                                                                  1
                SUMMARY OF THE STATE'S ARGUMENTS

      The evidence is legally sufficient to sustain Appellant's convictions for felon

in possession of a firearm and possession of identifying information. The State

proved every required element of the offenses beyond a reasonable doubt and

provided sufficient affinnative links to show Appellant possessed the firearm.

      As the evidence is legally sufficient to sustain both of Appellant's

convictions, the State requests that the Court affirm both of Appellant's sentences.




                                                                                       2
              STATE'S RESPONSE TO POINT OF ERROR ONE

      The evidence is legally sufficient to sustain Appellant's convictions
      for unlawful possession of a firearm by a felon and fraudulent use
      or possession of identifying information.

                            Argument and Authorities

      The proper standard of review to determine legal sufficiency is whether the

evidence would support the verdict when viewed in the light most favorable to the

verdict. Johnson v. State, 23 W.W.3d 1, 7 (Tex. Crim. App. 2001). In other

words, if a reasonable trier of fact could have found beyond a reasonable doubt the

essential elements of the crime, the verdict will be deemed legally sufficient.

Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Hines v. State, 978

S.W.2d 169, 172 (Tex. App.-Texarkana, no pet.).

      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. Jackson v. Virginia, 433 U.S. 307, 319, 99 S.Ct. 2781

(1979); Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004). When

performing a legal sufficiency review, the court may not sit as a thirteenth juror,

re-evaluating the weight and credibility of the evidence and substituting its

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).




                                                                                      3
      Finally, the court must consider all of the evidence submitted before the

jury, including inadmissible evidence. Watson v. State, 204 S.W.3d 404, 415 (Tex.

Crim .App. 2006). Specifically, the Court held that "once the trier of fact has

weighted the probative value ofunobjected-to hearsay evidence in its fact finding

process, an appellate court cannot deny that evidence probative value or ignore it

in a review of the sufficiency of the evidence. Poindexter v. State, 153 S.W.3d

402, 406 (Tex. Crim. App. 2005) (citing Fernandez v. State, 805 S.W.2d 451, 453-

56 (Tex. Crim. App. 1991) and Chambers v. State, 711 S.W.2d 240, 245-47 (Tex.

Crim. App. 1986).

      A. The State proved every required element for the offense of
      unlawful possession of a firearm by a felon beyond a reasonable
      doubt.

      A person commits the offense of Unlawful Possession of a Firearm if they

have been convicted of a felony offense and possess a firearm after conviction and

before the fifth anniversary of their release from confinement, supervision, parole

or mandatory supervision, whichever is later. TEX. PEN. C. § 46.04(a)(l) (Vernon

2015). Possession means "actual care, custody, control or management." TEX.

PEN. C.§ 1.07(a)(39) (Vernon 2015). Possession is voluntary if the possessor

knowingly obtains or receives the thing possessed or is aware of his or her control

of the thing for a time sufficient to terminate his or her control. TEX. PEN. C. §

6.01(b) (Vernon 2015). The State must show affirmative links that demonstrate a



                                                                                      4
defendant's possession of a firearm. Those links include whether: 1) the

contraband was conveniently accessible to the accused; 2) the contraband was in

plain view; 3) the contraband was found on the same side of the car as the accused;

and 4) affirmative statements connecting the accused to the contraband. Nguyen v.

State, 54 S.W.3d 49, 53 (Tex. App.-Texarkana 2001, reversed on other grounds).

      The indictment required proof at guilt-innocence of the following elements:

1) On or about the 1ih day of August, 2013; 2) in Hunt County, Texas; 3) Joseph

John Grubbs; 4) having been convicted of the felony offense of Burglary of a

Habitation on the 5th day of April, 2011 in cause number 27,269 in the 354th

Judicial District Court of Hunt County, Texas; 5) intentionally or lmowingly

possessed a firearm; and 6) before the fifth anniversary of Joseph G1ubb' s release

from confmement following conviction of said felony or the defendant's release

from supervision under community supervision, parole or mandatory supervision,

whichever date is later.

             1. Deputy Jay Shallow told the jury that the offense
                occurred on April12, 2013 in Hunt County, Texas.

      Deputy Shallow told the jury he responded to the scene and anested

Appellant on April12, 2013 in Hunt County, Texas. RR10/45-55. The 911 call

that caused Deputy Shallow to go to the scene was made on April12, 2013. SE1;

RR10/pp. 38-42.




                                                                                      5
              2. The jury heard evidence from both Deputy
                 Shallow and Ms. Land identifying Joseph John
                 Grubbs as the person arrested for this offense.

        Deputy Shallow identified Appellant for the jury and testified that Appellant

was the man the deputy arrested for these charges. RR10/47-55. When the deputy

first arrived only Ms. Land and Appellant were in the front yard. RR10/p.74-75.

Ms. Land identified Appellant for the jury and told them Appellant was with her at

the house when the deputy arrived. RR10/pp.87-89. Ms. Land also told the jury

that while her cousin was on the porch initially, he went inside once the fight

occurred and left her and Appellant in the front yard arguing. RR1 O/pp.89-90.

              3. The jury reviewed a copy of Appellant's conviction
                 for the underlying felony - Burglary of a
                 Habitation.

        The judgment for Cause 27,269 was admitted into evidence, without

objection, and showed that Appellant had a final conviction for the offense of

Burglary of a Habitation dated April 5, 2011 and convicted in the 354th Judicial

District Court of Hunt County, Texas as alleged in the indictment. SE9; RR1 0/pp.

26-27

        Inv. Mike Johnston, a fingerprint expert, collected a sample of Appellant's

fingerprints and compared them to Appellant's fingerprint on the judgment

showing his conviction for Burglary of a Habitation as alleged in the indictment.

SE 9-10. Inv. Johnston explained to the jury that Appellant was the person



                                                                                      6
convicted for Burglary of a Habitation and positively identified the Appellant both

in person and based on his fingerprint. SE 9-10; RR10/pp. 24-26.

      Furthermore, after discovering the gun, Deputy Shallow ran Appellant's

criminal history and discovered he was a convicted felon. RR10/pp. 53-54. Ms.

Land told the jury that Appellant was a convicted felon and could not possess a

firearm or he would go to jail. RR1 O/pp.93-94.

             4. The State established sufficient affirmative links to
                show Appellant's possession of the firearm.

      First, the gun was in plain view and conveniently accessible to the accused

in that it was on the ground and out in the open. The jury saw the actual gun and

bullets recovered as well as photographs of the items. SE 2, 4, 5 and 6;

RR1 O/pp.54-65. The jury also viewed Deputy Shallow's in car video showing

Appellant coming from behind the vehicle as the deputy an-ived. SE7;

RR1 O/pp.65-68. Deputy Shallow told the jury he found the gun and cards on the

side of the vehicle where Appellant came from when he arrived. RR10/pp.68-69.

The items were together on the grass next to and a little bit underneath the vehicle

Appellant came from but were in plain view to the deputy. RR10/p.69, lines 5-12.

The video also shows Deputy Shallow bringing the evidence back to secure it.

RR1 O/pp.69-70.

      Next, the firearm was found on the same side of the car where Appellant

came from. Deputy Shallow searched the area in front of the house behind two


                                                                                       7
vehicles parked at the house because that is where he first saw Appellant.

RR10/pp. 50-51. Deputy Shallow recovered a gun "in the same area I saw him

come from." RR1 O/p.51, lines 17-20. The weapon was a Raven .25 caliber pistol

and the deputy found five debit and credit cards that were from five different

people. RR1 O/p.51, lines 21-25. Deputy Shallow testified that in his years as a

peace officer this was the first time he encountered a .25 caliber gun and that they

were rare based on his experience. RR10/p.52, lines 1-23. The gun was loaded

and had a round in the chamber. RR10/p.53, lines 5-9.

      Furthermore, Mr. Robertson (the 911 caller) made affirmative statements

connecting Appellant to the weapon. The neighbor, Mr. Robertson's, 911 call was

published to the jury and they heard Mr. Robe1ison say that the male was holding

gun to the female's head in the front yard where they were fighting. SE1; RR10/pp.

38-42, and 95-96. When Deputy Shallow responded to the 911 call he saw

Appellant coming from behind some vehicles and Ms. Land crying. RR1 0/pp. 4 7-

48. Deputy Shallow told the jury that the demeanor of Appellant and Ms. Land

were consistent with what he would expect in a domestic disturbance case.

RR10/p.48, lines 7-10. While neither Appellant nor Ms. Land admitted a gun was

used or that an assault occurred, the deputy still detained Appellant and searched

for the gun based on the 911 caller saying a gun was used. RR10/pp. 49-50.




                                                                                       8
      Finally, Appellant was directly tied to the gun recovered in that he possessed

a bullet matching the exact caliber of a rare gun and that was identical to the bullet

recovered from the chamber. When preparing Appellant for transport, the deputy

noticed that Appellant had a bullet in his hand. RR1 0/p. 55, lines 1-11. The bullet

was .25 caliber and matched the bullet that the deputy found in the chamber of the

gun recovered at the scene. RR10/p. 55, lines 7-20. Appellant had the bullet

clenched in one of his hands behind his back when it was discovered by Deputy

Shallow. RR10/pp.70-71. Both Deputy Shallow and Inv. Roger Seals also

testified that a .25 caliber gun was not a common firearm on the streets. RR10/pp.

p.52, lines 1-23 and p.117, lines 11-19.

             5. The jury heard ample testimony that Appellant's
                possession of the firearm was before the fifth
                anniversary of his release from confinement,
                supervision or parole.

      Finally, in viewing Appellant's prior conviction, the jury could see that

Appellant was sentenced on April 5, 2011 for a three year prison sentence with one

hundred and sixty seven days credit. Therefore, even if Appellant were released

from custody on the day of conviction, he still could not lawfully possess a firearm

under this section for five years or AprilS, 2016. The offense in this case occmTed

on August 12, 2013- within the five year time frame where Appellant could not

possess a weapon.




                                                                                     9
      As the jury heard and saw sufficient evidence to prove each element of the

offense of Unlawful Possession of a Firearm by a Felon, as alleged in the

indictment, this conviction should be affirmed.

      B. The State proved every required element for the offense of
      fraudulent use or possession of identifying information beyond a
      reasonable doubt.

      A person commits the offense of Fraudulent Use or Possession of

Identifying Information if, with intent to harm or defraud another, he obtains,

possesses, transfers, or uses an item of identifying information of another person

without the person's consent. TEX. PEN. C.§ 32.51(b)(l) (Vernon 2015).

Fmihermore, the accused is presumed to have the intent to hann or de:fl-aud another

if the actor possesses the identifying information of three or more other persons.

TEX. PEN. C.§ 32.51 (b-1)(1) (Vernon 2015). Finally, if the person obtains,

possess, transfers or uses less than five items the offense is a state jail felony. TEX.

PEN. C.§ 32.51 (c)(1) (Vernon 2015).

      The indictment required proof of the following elements at the guilt stage: 1)

On or about the 1th day of August, 2013; 2) in Hunt County, Texas; 3) Joseph

John Grubbs; 4) possessed at least five items of identifying information, namely:

a.) Amanda Young's American National Bank Visa; b) Laura Richardson's Chase

Visa; c) Thomas Pressly's Signature Visa; d) Danny Cox' Capital One Visa Card;

or e) Cheryl Parker's Wells Fargo Visa.



                                                                                      10
            1. The jury heard proof that the offense occurred on
               April 5, 2013 in Hunt County, Texas and that
               Appellant was the person arrested for these
               offenses.

      Deputy Shallow told the jury he responded to the scene and anested

Appellant on April12, 2013 in Hunt County, Texas in response to a 911 call. SE1;

RR10/pp.38-42 and 45-55. Both Deputy Shallow and Ms. Land identified

Appellant for the jury and told them Appellant was at the scene when the deputy

anived. RR10/pp.44-55, 74-75 and 87-89.

            2. The jury saw and heard ample proof that
               Appellant possessed at least five items of
               identifying information from the individuals
               named in the indictment.

      Deputy Shallow searched the area in front of the house behind two vehicles

parked at the house where he first saw Appellant when he anived at the scene.

RR10/pp. 50-51. The deputy recovered a gun and five different debit and credit

cards from five different individuals "in the same area I saw him come from."

RR10/p.51, lines 17-25. None ofthe people whose names were on the cards

resided in the house where they were found. RR10/p. 53, lines 9-17.

      At trial, the jury saw the photos of the gun and credit cards recovered at the

crime scene. SE 4, 5 and 6; RR10/pp.54-61. State's exhibit 6 is a photo of the

debit and credit cards that were recovered beside the gun. SE6; RR1 0/pp. 60-61.




                                                                                   11
The gun and cards were found in plain view together on the grass next to, and a

little underneath, a vehicle. RR10/p. 61, lines 1-16.

      The jury also saw the actual debit and credit cards recovered in this case.

SE3; RR10/pp.63-65. Ms. Land verified that she had not possessed either the gun

or the cards that day and did not put them under the vehicle. RR10/pp.91-92.

Amanda Young, one of the debit card owners, testified that she lost her debit card

at a gas station and she had never given Appellant permission to use it.

RR10/pp.126-128.

      As the jury heard and saw sufficient evidence to prove each element of the

offense of Fraudulent Use or Possession of Identifying Information, as alleged in

the indictment, this conviction should be affirmed.




                                                                                    12
                              PRAYER

The State prays that the Court will affirm Appellant's sentences.


                                       Respectfully submitted,


                                      NOBLE DAN WALKER, JR.
                                      District Attorney
                                      Hunt County, Texas


                                         Is/ Keli M. Aiken
                                      KELI M. AIKEN
                                      Assistant District Attorney
                                      P. 0. Box 441
                                      4th Floor, Hunt County Comihouse
                                      Greenville, TX 75403
                                      State Bar No. 240434482
                                      (903) 408-4180
                                      FAX (903) 408-4296




                                                                         13
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body of the brief and contains 2,395 words, and was prepared on
Microsoft Word 2013.



                                                Is/ Keli M. Aiken
                                             KELI M. AIKEN
                                             First Assistant District Attmney
                                             P. 0. Box 441
                                             4th Floor Hunt County Comihouse
                                             Greenville, TX 75403
                                             (903) 408-4180
                                             FAX (903) 408-4296
                                             State Bar No. 24043442



                         CERTIFICATE OF SERVICE


      A true copy of the State's brief has been placed in Mr. Jason Duffs box in

the Hunt County District Clerk's Office on June 4, 2015, pursuant to local rules.



                                               /s/ Keli M. Aiken
                                             KELI M. AIKEN
                                             First Assistant District Attmney




                                                                                    14
