AFFIRM; and Opinion Filed May 7, 2015.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00887-CR

                       MICALOSA BERNARD MCDANIEL, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F-1362016-J

                              MEMORANDUM OPINION
                           Before Justices Bridges, Lang, and Schenck
                                   Opinion by Justice Schenck


       Micalosa Bernard McDaniel (Appellant) appeals his conviction of unlawful possession of

a firearm by a felon in two issues. In his first issue, Appellant argues the evidence is legally

insufficient to support his conviction. In his second issue, Appellant contends the trial court erred

by overruling Appellant’s objection to reading to the jury the portion of the indictment

describing the type of prior offense Appellant committed when Appellant had already agreed to

stipulate to the prior felony. We affirm his conviction in full. Because all issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
                                           DISCUSSION

1. Sufficiency of the evidence

Standard of Review

       When conducting a legal sufficiency review, we must ask whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt”—not

whether “it believes that the evidence at the trial established guilt beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In doing so, we assess all of the evidence in

the light most favorable to the verdict. Id. at 319). This same standard applies equally to

circumstantial and direct evidence. Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App.

2009). After giving proper deference to the factfinder's role, we will uphold the verdict unless a

rational factfinder must have had reasonable doubt as to any essential element. Id. at 518.

Applicable Law

       To establish unlawful possession of a firearm by a felon, the State is required to show

appellant was previously convicted of a felony offense and possessed a firearm after the

conviction and before the fifth anniversary of his release from confinement or from supervision

or parole, whichever is later. TEX. PEN. CODE ANN. § 46.04(a)(1). “Possession” means 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. See id. § 6.01(a)). Possession is a voluntary

act 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)).

       In cases involving unlawful possession of a firearm by a felon, we analyze the sufficiency

of the evidence under the rules adopted for determining the sufficiency of the evidence in cases

of unlawful possession of a controlled substance. Young v. State, 752 S.W.2d 137, 140 (Tex.

App.—Dallas 1988, pet. ref'd). Thus, the State is required to prove: (1) the accused exercised

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actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and

(3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.

Crim. App. 1986). The State's evidence, which may be either direct or circumstantial, must

establish the accused's connection with the firearm was more than just fortuitous. Brown v. State,

911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

       If the firearm is not found on the accused's person or is not in the exclusive possession of

the accused, the evidence must affirmatively link the accused to the firearm. Bates v. State, 155

S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.) Factors which may establish affirmative

links include whether: (1) the contraband was in plain view; (2) the accused was the owner of the

car in which the contraband was found; (3) the accused was the driver of the car in which the

contraband was found; (4) the accused was in close proximity and had ready access to the

contraband; (5) the contraband was found on the same side of the car seat as the accused was

sitting; (6) contraband was found on the accused; (7) the defendant attempted to flee; (8) conduct

by the accused indicated a consciousness of guilt, including extreme nervousness or furtive

gestures; (9) the accused had a special connection or relationship to the contraband; (11) the

place where the contraband was found was enclosed; (12) occupants of the automobile gave

conflicting statements about relevant matters; and (13) affirmative statements connect the

accused to the contraband, including incriminating statements made by the accused when

arrested. Id. at 216-17. The number of factors present is not talismanic. Id. at 217. Rather, it is

the logical force or the degree to which the factors, alone or in combination, tend to affirmatively

link the accused to the contraband. Id.

Application of Law to Facts

       Here, the record reveals several affirmative links between Appellant and the firearm. The

firearm was found under the backseat cushion on the same side of the car where Appellant was

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sitting. Trial testimony established that the backseat cushion was not attached to the car, so

Appellant could have easily lifted a corner of the backseat cushion to place the gun under the

backseat. Prior to the traffic stop, the arresting officer saw Appellant moving around, trying to

bend down as if concealing something. The record shows Appellant made incriminating

statements in phone calls from the jail, stating he knew if he did not get out of the car, he would

be “good” because “I know what I got.” Appellant also related he tried to convince another of the

car’s occupants to lie and take the gun—“All you have to do is tell them bro it’s my gun, boy

you’d been in here . . . for about 2 to 3 months.” Appellant points out the record shows that

Appellant did not drive or own the car, that he was in the car with four other people, and that he

was also found to possess drugs, which were recovered from his socks, which might also explain

his bending down as if to conceal something during the course of the stop. A jury might have

readily drawn the inference that the drugs and gun were equally problematic from Appellant’s

perspective, and that his furtive attempts to conceal something during the stop reflected his

knowledge that he possessed both. After reviewing all the record evidence in the light most

favorable to the verdict, we conclude the evidence is legally sufficient to support Appellant’s

conviction. See Laster, 275 S.W.3d at 518. Accordingly, we overrule his first issue.

2. Description of prior felony offense

       In his second issue, Appellant contends the trial court erred by overruling his objection to

the State’s reading to the jury the portion of the indictment describing the type of prior felony

offense committed as the predicate to the offense of felon in possession of a firearm when

Appellant agreed to stipulate to the underlying felony conviction. Appellant urges that evidence

of his prior offense carries the risk of unfair prejudice because in addition to the firearm offense,

he was charged with two counts of possession of a controlled substance, and his prior offense

was possession of a controlled substance.

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       Article 36.01(a)(1) of the Texas Code of Criminal Procedure provides that “[t]he

indictment or information shall be read to the jury by the attorney prosecuting . . . .” TEX. CODE.

CRIM. PROC. ANN. art. 36.01(a)(1). Rule 403 of Texas Rules of Evidence provides that “[t]he

court may exclude relevant evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice . . . .” TEX. R. EVID. 403.

       Appellant relies on three cases for the argument that once a defendant charged with

possession of a firearm by a felon stipulates to a prior conviction and objects to the reading of the

portion of the indictment describing the type of prior felony offense committed, it is error to

permit the State to read those facts to the jury as required by article 36.01(a)(1). See Old Chief v.

United States, 519 U.S. 172 (1997); Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000);

McIlroy v. State, 188 S.W.3d 789 (Tex. App.—Fort Worth 2006, no pet.). In all three cases, the

defendant offered to stipulate to the prior convictions and objected to the reading of the full

indictment. In Old Chief and Tamez, the defendants’ offers to stipulate were denied, and the

defendants renewed their objections when the prosecutors offered the judgments from the prior

convictions. Old Chief, 519 U.S. at 175, 177; Tamez, 11 S.W.3d at 199, 202. In McIlroy, the

defendant stipulated to the prior conviction, objected to the full reading of the indictment, and

prosecutor did not attempt to introduce the judgment from the prior conviction. McIlroy, 188

S.W.3d at 792-93, 96-97. These three cases are distinguishable. Appellant obtained a running

objection contemporaneous with the reading of the prior offense, but the agreed stipulation

described the prior offense as “possession of a controlled substance.” Further, Appellant

affirmatively stated he had “no objection” to the admission of either the agreed stipulation or the

judgment, despite the fact the judgment described the prior offense as “possession of controlled

substance, to wit: heroin.”




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       We conclude that the trial court’s error, if any, in permitting the State to read the entire

indictment was waived when Appellant affirmatively stated he had “no objection” to the

judgment or the agreed stipulation, both of which described Appellant’s prior felony offense as

“possession of a controlled substance.” Thomas v. State, 408 S.W.3d 877, 885-86 (Tex. Crim.

App. 2013) (holding that where the record does not show whether an abandonment was intended

or understood, a “no objection” statement is waiver of earlier-preserved error). Accordingly, we

overrule Appellant’s second issue.

                                        CONCLUSION

       We affirm the trial court’s judgment.




                                                     /David J. Schenck/
                                                     DAVID J. SCHENCK
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47

140887F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

MICALOSA BERNARD MCDANIEL,                          On Appeal from the Criminal District Court
Appellant                                           No. 3, Dallas County, Texas
                                                    Trial Court Cause No. F-1362016-J.
No. 05-14-00887-CR        V.                        Opinion delivered by Justice Schenck.
                                                    Justices Bridges and Lang participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of May, 2015.




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