Opinion filed August 8, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-12-00212-CR
                                   __________

                   MATTHEW RYAN BLAIN, Appellant

                                       V.

                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR-38072

                      MEMORANDUM OPINION
      Matthew Ryan Blain appeals his conviction for possession of a firearm by a
felon. See TEX. PENAL CODE ANN. § 46.04(a) (West 2011). The jury assessed
punishment at confinement for three years.       The trial court sentenced him
accordingly. Appellant challenges the trial court’s failure to suppress statements
made by him to law enforcement, the sufficiency of the evidence to support his
conviction, a denial of due process because of the lack of evidence, and an
improper jury argument. We affirm.
                                 I. Trial Evidence
      Midland County sheriff’s deputies were dispatched to investigate a “shots
fired” complaint to determine whether a crime had been committed.             When
Lieutenant Donald Graham and Deputy Edward Brawn arrived, they found
Appellant and Shawn Corey Thomas standing near a pickup that was parked
behind a house.      Neither Appellant nor Thomas was holding a gun, and
Lieutenant Graham and Deputy Brawn did not see a gun as they approached the
pickup.
      When Lieutenant Graham and Deputy Brawn questioned Appellant and
Thomas, Lieutenant Graham recognized Appellant from a prior incident. The
officers asked Appellant and Thomas what they were doing, and Appellant told
them that he and Thomas had been shooting clay pigeons with a shotgun.
Lieutenant Graham and Deputy Brawn noticed that there were spent shotgun shells
on the ground. Although Thomas’s shotgun was in the bed of the pickup and was
covered with a jacket, the butt of the gun was exposed.
      Lieutenant Graham had Deputy Brawn check Appellant’s criminal history
because he recognized Appellant and remembered that Appellant had been wearing
a monitor when he had last seen him. The dispatcher informed Lieutenant Graham
and Deputy Brawn that Appellant had a felony conviction, and they arrested him.
                               II. Standard of Review
      A. Motion to Suppress
      Appellant complains in his first point of error that the trial court erred when
it denied his motion to suppress certain statements he made at the scene of the
offense. We will not disturb a trial court’s ruling on a motion to suppress absent an
abuse of discretion. Swain v. State, 181 S.W.3d 359‚ 365 (Tex. Crim. App. 2005).
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An abuse of discretion occurs when the trial court acts without reference to any
guiding rules or principles or acts arbitrarily or unreasonably. Montgomery v.
State, 810 S.W.2d 372 (Tex. Crim. App. 1991); Brown v. State, 381 S.W.3d 565,
570–71 (Tex. App.—Eastland 2012, no pet.). Our review is a bifurcated one: we
give almost total deference to a trial court’s determination of historical facts, and
we review the trial court’s application of law de novo. State v. Weaver, 349
S.W.3d 521, 525 (Tex. Crim. App. 2011); Valtierra v. State, 310 S.W.3d 442, 447
(Tex. Crim. App. 2010).
      Appellant contends that, because the officers failed to comply with
Miranda v. Arizona, 384 U.S. 436 (1966), before questioning him in a custodial
interrogation, the statements that he made during that interrogation were
inadmissible. The State argues that no warnings were required because Appellant
was not in custody when he made the statements. We agree.
      Before a person may be subjected to custodial interrogation, the person must
be given Miranda warnings. Miranda, 384 U.S. at 444; see also Dowthitt v. State,
931 S.W.2d 244, 254 (Tex. Crim. App. 1996).                “Statements elicited in
noncompliance with this rule may not be admitted for certain purposes in a
criminal trial.” Stansbury v. California, 511 U.S. 318, 322 (1994). A police
officer’s obligation to provide Miranda warnings attaches when a person is in
“custody.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977). A person is in
custody when there is “a ‘formal arrest or restraint on freedom of movement’ of
the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121,
1125 (1983) (quoting Mathiason, 429 U.S. at 495).
      Courts consider the totality of the circumstances surrounding the
interrogation to determine whether a person is in “custody.” Stansbury, 511 U.S.
at 322.   Custody determinations turn on the objective circumstances of the
interrogation rather than the subjective views of the officers or the person being
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questioned. Stansbury, 511 U.S. at 322. “[T]he question turns on whether, under
the facts and circumstances of a case, ‘a reasonable person would have felt that he
or she was not at liberty to terminate the interrogation and leave.’” Nguyen v.
State, 292 S.W.3d 671, 678 (Tex. Crim. App. 2009). “The ‘reasonable person’
standard presupposes an innocent person.” Dowthitt, 931 S.W.2d at 254. An
officer’s subjective intent is irrelevant unless the officer communicates that intent
to the suspect. Id. “The determination of custody must be made on an ad hoc
basis, after considering all of the (objective) circumstances.” Id. at 255.
      Short of an arrest, officers are justified in briefly detaining individuals to
investigate when the officers arrive at a location where a crime has been reported.
Mays v. State, 726 S.W.2d 937, 944 (Tex. Crim. App. 1986). “A police officer
may briefly stop a suspicious individual in order to determine his identity or
maintain his status quo momentarily while obtaining more information.”
Gearing v. State, 685 S.W.2d 326, 327–28 (Tex. Crim. App. 1985). The Supreme
Court has instructed that “reasonable suspicion of criminal activity warrants a
temporary seizure for the purpose of questioning limited to the purpose of the
stop.” Florida v. Royer, 460 U.S. 491, 498 (1983).
      Here, deputies responded to a report of “shots fired.”          Deputy Brawn
testified that, depending on the circumstances, it could be extremely dangerous and
constitute the offense of deadly conduct to discharge a firearm in the location of
the call. See TEX. PENAL CODE ANN. § 22.05(b)(2) (West 2011) (discharging a
firearm in the direction of an occupied structure constitutes deadly conduct).
When the deputies arrived at the location where gunshots had been reported, they
had reason to believe that Appellant and Thomas were involved, and the deputies
were justified in briefly detaining them. See Mays, 726 S.W.2d at 944.
      After the deputies identified themselves, Lieutenant Graham recognized
Appellant and remembered that Appellant “had a monitor on him” during a prior
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encounter. When asked what they were doing, Appellant said that he and Thomas
had been shooting clay pigeons with a shotgun. These questions were asked when
the officers first made contact and were assessing the situation; the questioning
was not extensive or lengthy, and Appellant had freedom of movement.
Lieutenant Graham testified that he instructed Deputy Brawn to check Appellant’s
criminal history because, based on his prior experience with Appellant, he thought
that Appellant may have had a felony conviction, and Appellant had admitted to
shooting the gun. Appellant was neither placed under arrest nor handcuffed until
the dispatcher told the deputies that Appellant had been convicted of a felony.
These facts demonstrate that the officers were warranted in temporarily detaining
Appellant to investigate because there was reasonable suspicion of criminal
activity.
       We conclude that, based on the totality of the circumstances, the trial court
did not abuse its discretion when it concluded that Appellant was not in custody
when he made this statement. Because Appellant was not in custody, he was not
entitled to Miranda warnings. Appellant’s first point of error is overruled.
       B. Sufficiency of the Evidence
       Appellant complains in his second point of error that the evidence is
insufficient to support the jury’s finding of guilt. He argues that he was not
holding the shotgun and that his fingerprints were not on the shotgun. He also
argues that he was not in exclusive possession of the place where the gun was
found. Therefore, Appellant contends, “[I]t cannot be said [that] he exercised
control over [the shotgun].”
       We review the sufficiency of the evidence under the standard of review in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
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evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). The jury may make reasonable inferences from the
evidence and can rely on both circumstantial and direct evidence in its
determination. Hooper v. State, 214 S.W.3d 9, 14–16 (Tex. Crim. App. 2007).
We defer to the jury’s role as the sole judge of the witnesses’ credibility and the
weight their testimony is afforded. Brooks, 323 S.W.3d at 899.
      To commit a possession offense, a person must voluntarily possess the
prohibited item. TEX. PENAL CODE ANN. § 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). “We analyze the sufficiency of the evidence to prove
possession of a firearm by a felon under the rules adopted for determining the
sufficiency of the evidence in cases of possession of a controlled substance.”
Bollinger v. State, 224 S.W.3d 768, 773 (Tex. App.—Eastland 2007, pet. ref’d). In
an unlawful possession case, “the State must prove that the accused exercised care,
control and management over the contraband,” or here, the shotgun. Cude v. State,
716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Exclusive control is unnecessary and
“can be jointly exercised with one or more persons.” Id.
      When a defendant does not have exclusive possession of the place where the
contraband was found, however, we cannot conclude he had knowledge of the
contraband or control over it unless there are additional facts that “affirmatively
link” the defendant to the contraband. Poindexter v. State, 153 S.W.3d 402, 406
(Tex. Crim. App. 2005). The “affirmative links rule” should protect innocent
bystanders from conviction based solely on their proximity to someone else’s con-
traband. Id. It is not the number of links that is important but the degree to which
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they link the defendant to the contraband. Williams v. State, 906 S.W.2d 58, 65
(Tex. App.—Tyler 1995, pet. ref’d); Whitworth v. State, 808 S.W.2d 566, 569
(Tex. App.—Austin 1991, pet. ref’d).
      Some of the relevant factors used to “affirmatively link” a suspect to
contraband are (1) whether the defendant was present during the search,
(2) whether the contraband was in plain view, (3) whether the defendant made
incriminating statements when arrested, and (4) whether the conduct of the
defendant indicated a consciousness of guilt. See Evans v. State, 202 S.W.3d 158,
162 n.12 (Tex. Crim. App. 2006) (citing Olivarez v. State, 171 S.W.3d 283, 291
(Tex. App.—Houston [14th Dist.] 2005, no pet.)). The rule requiring affirmative
links is not an independent test for assessing sufficiency but, instead, “is merely a
shorthand catchphrase for the myriad variety of circumstantial evidence that may
establish knowing ‘possession’ or ‘control, management, or care.’” Havelka v.
State, 224 S.W.3d 787, 789 (Tex. App.—Eastland 2007, no pet.) (citing Evans, 202
S.W.3d at 161–62).
      Appellant contends, as a preliminary matter, that Thomas’s testimony cannot
be relied on to establish the necessary “affirmative links” because that testimony
must be corroborated under the accomplice-witness rule. The State argues that
Thomas was not an accomplice and that his testimony does not require
corroboration. Even if we were to agree that Thomas was an accomplice witness,
there is other evidence in the record that sufficiently supports the conviction,
including the statements made to the officers by Appellant.
      Our review of the record reveals several facts that “affirmatively link”
Appellant to the shotgun. Appellant was present when the deputies arrived on the
scene, and although the shotgun was concealed by a jacket, the butt of the gun was
in plain view. Spent shell casings and clay pigeons were visible as well. After
identifying himself, Appellant told the officers that he and Thomas had both been
                                         7
shooting clay pigeons with the shotgun. In addition to Appellant’s confession,
there is other evidence indicating consciousness of guilt. Lieutenant Graham
testified that, after Appellant’s arrest and while he was sitting in the back of the
patrol car, Appellant “was pleading to me to give him a break.” After reviewing
all of the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found beyond a reasonable doubt that Appellant exercised
control over the shotgun and had knowledge of its presence. Appellant’s second
point of error is overruled.
      In his third point of error, Appellant claims that he was denied due process
because his conviction was based upon insufficient evidence. We have now held
that there was sufficient evidence to support Appellant’s conviction. He was not,
therefore, denied due process. Appellant’s third point of error is overruled.
      C. Improper Jury Argument
      Appellant contends in his fourth point of error that, during closing argument,
the State incorrectly told the jury that “the Judge told you in that jury charge, that
[Appellant] was convicted of a felony. He told you that burglary of a building is a
felony offense.” There was no objection to the argument. The State argues that,
because Appellant did not object to the jury argument, he has waived any
complaint on appeal.
      To preserve an issue for appellate review, the complaining party must have
made a timely and specific objection and received an adverse ruling. See TEX. R.
APP. P. 33.1. A jury argument in which the law is misstated or that contains
matters that are contrary to the instructions in the jury charge is improper. Kuhn v.
State, 393 S.W.3d 519, 540 (Tex. App—Austin 2013, pet. ref’d). However, in
order to preserve the complaint on appeal, a defendant must object to the improper
argument. TEX. R. APP. P. 33.1. Here, there was no objection, and Appellant has
waived the complaint. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
                                          8
1996); Bryant v. State, 455 S.W.2d 235, 236 (Tex. Crim. App. 1970). Appellant’s
fourth point of error is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


August 8, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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