                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00175-CR


ANTHONY LEE WILLIAMS                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Anthony Lee Williams pleaded guilty to possession of a

controlled substance. Williams also pleaded true to an enhancement paragraph

regarding a prior controlled substance conviction. At sentencing, the court found

true the State’s allegation that Williams committed the extraneous offense of

possessing a firearm while a felon and later sentenced Williams to fifteen years’

      1
       See Tex. R. App. P. 47.4.
confinement in the Texas Department of Criminal Justice Institutional Division. In

two issues, Williams contends first that the State failed to prove beyond a

reasonable doubt the extraneous offense of possession of a firearm by a felon

and second that his constitutional right to due process was denied when the

State failed to inform Williams that evidence had been destroyed. We will affirm.

                                 II. BACKGROUND

      The Wichita Falls Police Department (―WFPD‖) executed a search warrant

on a home located at 108 Farris Street on March 1, 2007. Police found Williams

inside the kitchen with crack cocaine in plain view on the kitchen table in close

proximity to Williams.   Officers additionally found Ecstasy pills in the back

bedroom.

      On December 12, 2007, SWAT executed another warrant on the same

premises.   Officer Vermillion, the first to enter the room, observed Williams

standing at the foot of the bed with his hands up. Vermillion ordered him to lie on

the bed. Officer Eipper testified that he observed Williams lying on a bed as the

sole occupant in the bedroom. Officers recovered mail with Williams’s name on it

in the bedroom, along with a .22 caliber revolver on a surface near the bed.

      WFPD again executed a warrant on the same house on October 14, 2008.

Williams was found behind the home with crack cocaine in his pocket.2


      2
       As a result of the searches, the State charged Williams with two counts of
possession of a controlled substance and one count of possessing a firearm
while still a felon. Williams pleaded guilty to one of the possession charges and
proceeded to trial on the other two remaining charges. The State then decided to

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      At the punishment hearing, Officer Gerald Shulte of the WFPD testified

regarding the search warrant executed on December 12, 2007. Schulte testified

that the SWAT team made entry for the police and found Williams in the bedroom

with the mail and the loaded revolver.      Schulte did not see Williams in the

bedroom himself, but he did see the revolver and believed it was located on a

nightstand next to the bed or the headboard.       Schulte said the mail in the

bedroom had Williams’s name on it, but he was not sure if the address on the

mail was 108 Farris Street.

      Officer Charles Eipper testified that he was a member of the SWAT team

that executed the December 12 search warrant. Eipper testified that he saw

Williams on the bed in the bedroom and also saw the revolver in plain view lying

on a shelf within reach of someone on the bed. Officer Walter Vermillion testified

that he was also a member of the SWAT team executing the December 12

warrant and that he also saw Williams in the bedroom with the revolver either

next to the bed or on the shelf.

      Officer Karl King of the WFPD narcotics unit testified that on December 12,

he searched the premises after the house was emptied of all occupants. King

testified that he found the .22 caliber revolver loaded with a single round on top

dismiss the remaining two charges and use them at punishment only. But the
dismissals were not the result of a plea bargain; thus, we have jurisdiction to
address Williams’s issues on appeal. See Shankle v. State, 119 S.W.3d 808,
813 (Tex. Crim. App. 2003) (holding that open plea resulting from State’s
agreement to dismiss other charges can be plea bargain prohibiting right of
appeal).


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of two VCR tapes on the headboard of the bed in the same room where Williams

was found. King also testified that he located mail belonging to Williams in the

same room. Upon cross-examination, King said that the gun and mail had been

destroyed pursuant to a destruction order prior to the time of the sentencing

hearing.   The court found that the State had proved the extraneous offense

beyond a reasonable doubt. This appeal followed.

                                  III. ANALYSIS

      A.    Extraneous Offense

      In his first issue, Williams argues the trial court erred by finding that he

committed the unadjudicated extraneous offense of unlawful possession of a

firearm by a felon and that the court thus abused its discretion by considering the

offense when assessing Williams’s punishment.

      Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure

provides in relevant part that regardless of the plea and whether the punishment

is assessed by the judge or jury, evidence may be offered by the State and the

defendant as to any matter the court deems relevant to sentencing, including

evidence of an extraneous crime or bad act that is shown beyond a reasonable

doubt to have been committed by the defendant, regardless of whether he has

previously been charged with or finally convicted of the crime or act. Tex. Code

Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2010). Williams faced three

separate charges at trial, one of which was unlawful possession of a firearm by a

felon, a charge the State agreed to dismiss and instead use only as punishment


                                        4
evidence. Section 46.04 of the Texas Penal Code provides in part that a person

commits the offense of unlawful possession of a firearm by a felon if the

defendant was previously convicted of a felony offense and possessed a firearm

after the conviction and before the fifth anniversary of the person’s release from

confinement. Tex. Penal Code Ann. § 46.04 (Vernon Supp. 2010). The record

establishes that Williams was released from incarceration in 2004 after being

convicted for the felony offense of delivery of a controlled substance.

      The penal code defines possession as ―actual care, custody, control, or

management.‖      Id. § 1.07(a)(39) (Vernon Supp. 2010).       A person commits a

possession offense only if he voluntarily possesses the prohibited item.        Id.

§ 6.01(a) (Vernon 2003). 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).

      The State’s evidence must establish that 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 defendant’s person or

is not seen in the defendant’s exclusive care, custody, control, or management,

as in this case, the State must offer additional, independent facts and

circumstances that link the defendant to the firearm. Bates v. State, 155 S.W.3d

212, 216–17 (Tex. App.—Dallas 2004, no pet.); see Sutton v. State, 328 S.W.3d

73, 76 (Tex. App.—Fort Worth 2010, no pet.) (citing Villarreal v. State, Nos. 02-

07-00329-CR, 02-07-00330-CR, 2009 WL 671042, at *1 (Tex. App.—Fort Worth


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Mar. 12, 2009, pet. ref’d) (mem. op., not designated for publication) (―The . . .

links doctrine also applies to the possession of firearms.‖)).      The purpose of

linking the accused to the firearm is to protect innocent bystanders from

conviction solely on their fortuitous proximity to the firearm. See Poindexter v.

State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).              Such links may be

established by either direct or circumstantial evidence.       Evans v. State, 202

S.W.3d 158, 161–62 (Tex. Crim. App. 2006).

      An appellate court examines factors such as whether the firearm was in

plain view, whether the defendant owned the premises where the firearm was

found, whether the defendant made incriminating statements, whether the

defendant was in close proximity to the firearm and had ready access to it,

whether the defendant attempted to flee, whether the defendant’s conduct

indicated a consciousness of guilt, whether the defendant had a special

connection to the firearm, and whether the firearm was found in an enclosed

space. Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d);

see Westbrook v. State, No. 02-07-00455-CR, 2008 WL 5672533, at *4 (Tex.

App.—Fort Worth Feb. 26, 2009, pet. ref’d) (mem. op., not designated for

publication). Significantly, it is the logical force of the factors, not the number of

factors present, that determines whether the elements of the offense have been

established. See Smith, 176 S.W.3d at 916.

      Thus, we turn to the evidence that would affirmatively link Williams to the

firearm in such a manner and to such an extent that a reasonable inference may


                                          6
arise that Williams knew of the existence of the firearm and that he exercised

control over the firearm. The primary source of evidence presented in this case

to establish affirmative links was testimony by witnesses present at the scene.

Williams claims the testimony was conflicting. In this regard, we recognize that

the factfinder is the sole judge of the credibility of the witnesses and may accept

or reject any part or all of the testimony given by State or defense witnesses.

Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). With this in mind, we

view the evidence in the light most favorable to the verdict.

      Several facts link Williams to the revolver found at 108 Farris Street. First,

Williams was the only occupant in the bedroom where the revolver was located

when police entered the home.        The first officer who entered the bedroom,

Vermillion, testified that Williams was standing at the foot of the bed and that in

order to secure the premises, Williams was ordered onto the bed. There was no

one else present in the bedroom at the time officers entered and found Williams.

Second, the revolver was in plain view. All officers testified that the revolver was

immediately visible on a surface directly next to the bed. Third, while Williams

did not own the house, there is no dispute that he was residing at 108 Farris

Street and according to Williams’ own briefing, ―the testimony should lead one to

believe it was his residence.‖ Not only had Williams been named on prior search

warrants executed on the home, but there was also mail found in the bedroom at

the Farris Street address with Williams’s name on it.           For purposes of our

analysis here, the facts indicate that Williams was a resident of the property


                                         7
where the revolver was located. Finally, while Williams contends that he was

only in close proximity to the revolver such that he had ready access to the

firearm because he was ordered onto the bed by officers, this argument is

unavailing.   ―Ready access‖ does not mean immediate access, and the fact

remains that the revolver was found in an enclosed bedroom, within which

Williams was the only occupant, and that the gun was readily available as it lay

out in the open. See Ramos v. State, Nos. 02-07-00118-CR, 02-07-00119-CR,

2008 WL 623777, at *7 (Tex. App.—Fort Worth Mar. 6, 2008, pet. ref’d) (mem.

op., not designated for publication) (holding that evidence was sufficient to

support conviction for unlawful possession of firearm when assault rifle was

found in master bedroom closet, which appellant shared with his wife); Smith v.

State, No. 12-06-00021-CR, 2007 WL 2178541, at *3 (Tex. App.—Tyler July 31,

2007, no pet.) (mem. op., not designated for publication) (holding that evidence

was sufficient to support conviction for unlawful possession of firearm when pistol

was found in plain view in linen closet next to bedroom where appellant slept);

Austin v. State, Nos. 14-00-01389-CR, 14-00-01390-CR, 2002 WL 370045, at *3

(Tex. App.—Houston [14th Dist.] Mar. 7, 2002, no pet.) (not designated for

publication) (holding that evidence was sufficient to support conviction for

unlawful possession of firearm that officers found in bedroom closet because

closet contained mail addressed to appellant); Holland v. State, Nos. 05-99-

00821-CR, 05-99-00822-CR, 2002 WL 115582, at *7 (Tex. App.—Dallas Jan. 30,

2002, pet. ref’d) (not designated for publication) (holding that evidence was


                                        8
sufficient to support conviction for unlawful possession of firearm that officers

found in back center closet which was accessible to appellant).

      Viewing all the evidence in the light most favorable to the verdict and

giving due deference to the factfinder’s responsibility to resolve conflicts in

testimony, weigh the evidence, and draw reasonable inferences, we find that the

evidence is sufficient to support the trial court’s finding that Williams committed

the extraneous offense of unlawful possession of a firearm by a felon and thus

the trial court properly considered the offense in Williams’s sentencing.          We

overrule Williams’s first issue.

      B.     Preservation of Evidence

      In his second issue, Williams argues that the State violated his

constitutional right of due process by failing to disclose that evidence found at the

scene, namely the revolver and mail, had been destroyed prior to trial. Williams

argues that this failure amounted to a Brady violation because it prevented

counsel from adequately advising his client. Brady v. Maryland, 373 U.S. 83, 87

S. Ct. 1194, 1196–97 (1963).        We disagree with Williams that the State’s

destruction of the mail and revolver prior to trial violated his right of due process.

      In determining whether the pretrial destruction of evidence constitutes a

denial of due process of law under the United States Constitution, the Supreme

Court draws a distinction between ―material exculpatory evidence‖ and

―potentially useful evidence.‖ Salazar v. State, 298 S.W.3d 273, 277–78 (Tex.

App.—Fort Worth 2009, pet. ref’d) (quoting Arizona v. Youngblood, 488 U.S. 51,


                                          9
57–58, 109 S. Ct. 333, 337 (1988)).      A federal due process violation occurs

whenever a state suppresses or fails to disclose ―material exculpatory evidence,‖

regardless of whether the State acted in bad faith. Id. at 278 (quoting Illinois v.

Fisher, 540 U.S. 544, 547, 124 S. Ct. 1200, 1201 (2004)). But the Supreme

Court has held that if a defendant seeks to prove a federal due process violation

based on a state’s destruction of ―potentially useful evidence,‖ the defendant

must show that the State acted in bad faith in destroying the evidence. Id. (citing

Fisher, 540 U.S. at 547–48, 124 S. Ct. at 1202; Youngblood, 488 U.S. at 57–58,

109 S. Ct. at 337).    ―Potentially useful evidence‖ is described as evidentiary

material ―of which no more can be said than that it could have been subjected to

tests, the results of which might have exonerated the defendant.‖ Id. (quoting

Youngblood, 488 U.S. at 57–58, 109 S. Ct. at 337).                Supreme Court

jurisprudence further divides cases involving nondisclosure of evidence into two

areas:

      (a)   Brady addresses exculpatory evidence still in the government’s

            possession. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App.

            1999) (citing Brady, 373 U.S. at 90, 83 S. Ct. at 1198);

      (b)   Youngblood and Trombetta address cases in which the government

            no longer possesses the disputed evidence. Little, 991 S.W.2d at

            866. (citing California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528

            (1984)).




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      Under this paradigm, when a defendant is alleging that the State failed to

disclose the fact that it had lost or destroyed evidence, such information is

considered evidence in the possession of the State and his claim still falls under

Brady and its progeny; thus, it must be shown that: (1) the prosecutor failed to

disclose evidence, (2) the evidence is favorable to the defendant, and (3) the

evidence is material, such that there is a reasonable probability that had the

evidence been disclosed to the defense, the outcome of the trial would have

been different. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,

3383 (1985).

      To the extent Williams argues that he was denied the opportunity for a fair

trial based on the destruction of the evidence because ―no one knows what the

weapon bears (fingerprints) or whether it [was] operable because it was

destroyed,‖ Williams fails to meet his burden under Youngblood. In order to

prevail on this claim, Williams must show more than that the gun could have

been subjected to additional tests which may potentially have led to exculpatory

results. Additionally, there is no evidence to indicate the State acted in bad faith

when destroying the gun and mail prior to trial. To the contrary, Williams himself

admits that ―there is no indication that the destruction of the evidence was done

in bad faith,‖ and Williams’s counsel elicited testimony that the State’s destruction

of both the gun and the mail was pursuant to a court order. Because Williams

has failed to show that the State destroyed potentially useful evidence in bad

faith, we overrule this issue.


                                         11
      As an ancillary point, Williams contends that the Texas Constitution’s Due

Course of Law Clause provides a greater level of protection than the Due

Process Clause of the Fourteenth Amendment. But a number of Texas courts of

appeals, including this court, have held that the Texas Constitution does not

provide a greater level of protection than the United States Constitution regarding

the State’s loss or destruction of evidence in a criminal prosecution.         See

Salazar, 298 S.W.3d at 278–79; Jackson v. State, 50 S.W.3d 579, 588–89 (Tex.

App.—Fort Worth 2001, pet. ref’d); see also State v. Vasquez, 230 S.W.3d 744,

750–51 (Tex. App—Houston [14th Dist.] 2007, no pet.); McGee v. State, 210

S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185

S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); State v. Rudd, 871

S.W.2d 530, 533 (Tex. App.—Dallas 1994, no pet.); Saldana v. State, 783

S.W.2d 22, 23 (Tex. App.—Austin 1990, no pet.). We agree with our previous

holding and the holding of our sister courts of appeals that the Due Course of

Law Clause in the Texas Constitution provides the same protection as the Due

Process Clause in the United States Constitution regarding claims that the

State’s destruction of potentially useful evidence in a criminal prosecution

constitutes a constitutional violation. Williams is required to demonstrate that the

State acted in bad faith, which he has not done.

      To the extent that Williams argues that he was denied a fair trial based on

the State’s alleged failure to disclose the fact that the gun and mail were

destroyed prior to trial, this argument also fails. There is no evidence in the


                                        12
record to support the claim that the State failed to disclose the fact that the gun

and mail had been destroyed. Defense counsel elicited the information upon

cross-examination of Officer King. Although Williams now alleges on appeal that

this testimony was the first time he learned the evidence had been destroyed,

trial counsel did not object at trial seeking exclusion for nondisclosure, nor did he

request a continuance to allow time to develop the facts regarding the destruction

at any time after eliciting the testimony regarding the destroyed evidence. State

v. Fury, 186 S.W.3d 67, 73–74 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)

(―A defendant’s failure to request a continuance indicates that the tardy

disclosure of evidence was not prejudicial.‖). Because Williams cannot meet the

first prong under Brady, which requires a showing that the State failed to disclose

the fact that the evidence had been destroyed, we overrule his second issue.

                                 IV. CONCLUSION

      Having overruled Williams’s two issues, we affirm the trial court’s

judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 12, 2011



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