                                  NO. 07-05-0409-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  MARCH 20, 2007
                          ______________________________

             CECIL CHARLES CASEL, AKA: CECIL CASEL, APPELLANT

                                           V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

            FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY;

               NO. 0923863D; HONORABLE ROBERT K. GILL, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Cecil Charles Casel, was convicted of unlawful possession of a firearm

by a felon and sentenced to confinement in the Institutional Division of the Texas

Department of Criminal Justice for a period of five years and fined $1,000. By two issues,

appellant challenges the legal and factual sufficiency of the evidence to sustain the

conviction. We affirm.
                                   Factual background


       Officer Grow of the Fort Worth Police Department was patrolling on the east side

of Fort Worth when he decided to walk through the parking lot of an establishment known

as the Amarillo Spot. While going through the parking lot, Officer Grow looked inside a

Cadillac and noticed a silver colored hand gun sticking partially out from under the driver’s

side seat. Officer Grow testified that the gun was seventy-five to ninety per cent visible

from outside of the car.


       At the conclusion of his shift, Officer Grow, gave the description of the vehicle and

the license plate number to another officer and asked the second officer to maintain

surveillance of the car. Eventually, appellant exited the Amarillo Spot and got into the

vehicle. Appellant drove the vehicle for approximately 75 yards without any lights on and

was stopped by the police. The officer observed the gun sticking out from the driver’s side

seat in the same location he had been given by Officer Grow. A check of appellant’s

criminal record revealed he had a previous conviction for a felony. Appellant was then

arrested on the charge of a felon in possession of a firearm.


       During the trial on this matter, appellant introduced the testimony of Destiny

Wideman. Ms Wideman testified that she had borrowed appellant’s car the day before the

arrest and the gun was hers. She stated while she was using the car, she placed the gun

under the driver’s side seat. Subsequently, at about midnight she returned the car to

appellant’s job location, the Amarillo Spot, and forgot about the gun. Although the jury

heard this evidence, appellant was convicted.


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                                     Legal Sufficiency


       When reviewing legal 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); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim. App. 2004). The jury is the sole judge of the weight and

credibility of the evidence.


       To sustain a conviction for a felon in possession of a firearm, the State was required

to prove that 1) appellant, 2) intentionally or knowingly, 3) possessed a firearm, 4) away

from the premises where appellant resided and, 5) that appellant had been previously

convicted of a felony offense. See TEX . PENAL CODE ANN . § 46.04(a)(2) (Vernon Supp.

2004). In a possession of a firearm by a felon case we analyze the sufficiency of the

evidence by use of the rules adopted to analyze the sufficiency of the evidence in

possession of controlled substance cases. Coleman v. State, 188 S.W.3d 708, 720

(Tex.App.–Tyler 2005, pet. ref’d), cert. denied, 127 S.Ct. 502 ( 2006). Therefore, the State

was required to prove that appellant knew the weapon existed and exercised actual care,

custody and control over it. Id. This proof may be either direct evidence or circumstantial,

but the evidence must establish the accused’s connection with the contraband was more

than just fortuitous. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).

Additionally, the mere presence of the appellant at the location of the weapon is




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insufficient, by itself, to establish the required care, custody and control over it. See Evans

v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006).


       To meet this burden the State must demonstrate that, in addition to the presence

or proximity of the appellant to the weapon, there are other factors that would establish

appellant’s connection sufficiently to prove the required elements of knowingly possessing

the weapon. In reviewing this other evidence, we are mindful that it is not the number of

factors but rather the logical force of the other factors that is important. Id. Some of the

factors that might be important include: 1) the contraband was in a car driven by appellant;

2) the contraband was in a place owned by appellant; 3) the contraband was conveniently

accessible to appellant; 4) the contraband was in plain view; and 5) the contraband was

found in an enclosed space.            See Hawkins v. State, 89 S.W.3d 674, 677

(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d).


       In the present case, the gun was found in appellant’s vehicle and two witnesses

testified that it was in plain view. Additionally, the location of the weapon was within the

passenger compartment, an enclosed area, and the weapon was easily accessible by

appellant. Accordingly, there was sufficient evidence to clearly show that appellant’s

presence and proximity to the weapon was much more than merely fortuitous. This

evidence rationally supports the jury finding that appellant possessed the weapon.

Therefore, appellant’s first issue is overruled.




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                                    Factual Sufficiency


       Next, appellant contends that the evidence was factually insufficient to support the

conviction.   When an appellant challenges the factual sufficiency of the evidence

supporting his conviction, the reviewing court must determine whether, considering all the

evidence in a neutral light, the jury was rationally justified in finding the appellant guilty

beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.

2006). In performing a factual sufficiency review, we are to give deference to the fact

finder’s determinations and may not order a new trial simply because we may disagree with

the verdict. See id. at 414. As an appellate court, we are not justified in ordering a new

trial unless there is some objective basis in the record demonstrating that the great weight

and preponderance of the evidence contradicts the jury’s verdict.           See id. at 417.

Additionally, an appellate opinion addressing factual sufficiency must include a discussion

of the most important evidence that appellant claims undermines the jury’s verdict. Sims

v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003)


       In the case before the court, appellant primarily relies upon the testimony of Destiny

Wideman to prove that he had no knowledge of the weapon’s presence and, therefore,

could not have knowingly possessed the weapon. Ms. Wideman testified that she had

borrowed the car while going from place to place to look for employment. Further, she

testified that she had recently purchased the gun and placed it under the seat so as not to

take it into the places where she was applying for work. The State extensively cross-

examined her in an attempt to get specifics about where she applied for jobs, the



                                              5
circumstances surrounding the purchase of the gun and the reasons the witness felt she

needed the gun. The jury heard all of this evidence and it was within the jury’s province

to determined the weight and value of the testimony of Ms. Wideman and to judge the

credibility of the witness. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2004). When

conducting a factual sufficiency review, we must resist the temptation to sit as a thirteenth

juror simply because we might arrive at a different conclusion than the jury. Watson, 204

S.W.3d at 417. After reviewing the evidence in a neutral light we cannot say that the jury

was not rationally justified in finding appellant guilty beyond a reasonable doubt.

Accordingly, appellant’s second issue is overruled.


                                       Conclusion


       Having overruled appellant’s two issues, the judgment of the trial court is affirmed.




                                          Mackey K. Hancock
                                              Justice



Do not publish.




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