Opinion issued April 8, 2014




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-13-00213-CR
                          ———————————
                  CRAIG EUGENE JOHNSON, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Case No. 1359244


                        MEMORANDUM OPINION

      Appellant Craig Eugene Johnson was charged by indictment with unlawful

possession of a firearm by a felon, enhanced by one prior felony conviction. The

jury found Johnson guilty and assessed the punishment at confinement in prison
for two years. On appeal, Johnson challenges the sufficiency of the evidence to

support his conviction. We affirm.

                                     Background

       In August 2012, two Houston Police Department officers executed a no-

knock warrant to search Johnson’s townhouse and found Johnson home alone.

Officer D. Curtis testified at trial that he found Johnson sitting at a computer desk

on the second floor—Johnson was calm and did not attempt to flee.

      The officers found a loaded handgun in the master bedroom, which was on

the second floor adjacent to the area in which Johnson was sitting. The firearm

was lying on the floor among Johnson’s clothing and several prescription pill

bottles issued to Johnson. Officer Curtis testified that officers also found a small

quantity of crack cocaine and a digital scale in Johnson’s kitchen, along with three

beige rock-like substances under the desk where Johnson had been sitting.

      Johnson testified at trial that he lived alone in the townhouse and had been

leasing it for “[s]ix, going on seven years,” but that the firearm was not his and that

he did not know it was in the townhouse. Johnson testified that he had recently

allowed two female acquaintances to stay in the townhouse for about a week. He

told them to leave because they were doing drugs, but he never retrieved his house

keys from them. Additionally, Johnson testified that he thought an intruder had

been in his townhouse on the day the officers executed the warrant. He believed



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this because the air conditioner was on when he arrived home and he always turned

it off on his way out. Johnson also suggested that the officers planted the firearm.

He testified that officers claimed to have found the firearm only after an

unidentified officer arrived at the scene over an hour after the search began and

took something inside the house.

      On rebuttal, the State recalled Officer Curtis to impeach Johnson’s

testimony.   Officer Curtis testified that, on the day the officers executed the

warrant, Johnson admitted owning the firearm. The trial court’s charge instructed

the jury to consider this evidence to aid in determining Johnson’s credibility and

not to consider it as evidence establishing Johnson’s guilt:

      You are instructed that a witness may be impeached by showing that
      he or she has made other and different statements out of court from
      those made before you in the trial. Such impeachment evidence may
      be considered by you to aid you in determining, if it does so, the
      weight, if any, to be given the testimony of the witness at trial and his
      or her credibility; but such impeaching evidence is not to be
      considered as tending to establish the alleged guilt of the defendant in
      such case.

                            Sufficiency of the Evidence

      In his sole point of error, Johnson challenges the sufficiency of the evidence

to support his conviction on the grounds that the State failed to establish that he

exercised actual care, custody, control, or management of the firearm.




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A.    Standard of Review

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and 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, 2789 (1979);

Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc). The

standard is the same for both direct and circumstantial evidence cases. King v.

State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

      We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this is the function of the trier of fact.      See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore

resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s

credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625

(Tex. Crim. App. 2006).

B.    Applicable Law

      To establish unlawful possession of a firearm by a felon, the State must

prove beyond a reasonable doubt that the accused 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 community supervision,



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parole, or mandatory supervision, whichever date is later. TEX. PENAL CODE ANN.

§ 46.04(a)(1) (West 2011); Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d).

          “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.” TEX. PENAL CODE ANN. § 6.01(b) (West

2011); Hawkins, 89 S.W.3d at 677. “If the firearm is not found on the defendant or

is not in his exclusive possession, the evidence must affirmatively link him to the

firearm.” James v. State, 264 S.W.3d 215, 218–19 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d). This rule protects the innocent bystander—such as a

relative, friend, or even stranger to the actual possessor—from conviction merely

because of his fortuitous proximity to a firearm belonging to someone else. See

Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006); Smith v. State,

176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d).

          The State may establish possession by proving links which demonstrate that

the defendant “was conscious of his connection with the weapon and knew what it

was.” James, 264 S.W.3d at 219. Several nonexclusive factors may establish such

a link:

          (1) the defendant was present    at the time of the search; (2) the
          defendant was the owner of or    had the right to control the location
          where the firearm was found;     (3) the firearm was in plain view;
          (4) the defendant was in close   proximity to and had access to the

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         firearm; (5) firearms or other contraband were found on the defendant;
         (6) the defendant attempted to flee; (7) conduct by the defendant
         indicated a consciousness of guilt, including extreme nervousness or
         furtive gestures; (8) the defendant had a special connection or
         relationship to the firearm; (9) the place where the firearm was found
         was enclosed; and (10) affirmative statements connected the
         defendant to the firearm, including incriminating statements made by
         the defendant when arrested.

See Williams v. State, 313 S.W.3d 393, 397–98 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d); James, 264 S.W.3d at 219; see also Evans, 202 S.W.3d at 162 &

n. 12.

         The “number of . . . links proven is not as important as the logical force that

they collectively create,” Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d), and, “[t]he absence of various affirmative

links does not constitute evidence of innocence to be weighed against the

affirmative links present.” James, 264 S.W.3d at 219. The evidence used to

satisfy these elements can be direct or circumstantial. Hawkins, 89 S.W.3d at 677.

C.       Analysis

         To convict Johnson, the State had to prove beyond a reasonable doubt that

Johnson (1) was previously convicted of a felony offense and (2) possessed a

firearm after the previous conviction and before the fifth anniversary of his release

from confinement or from community supervision, parole, or mandatory

supervision for the previous conviction, whichever date is later. TEX. PENAL CODE

ANN. § 46.04(a)(1); Hawkins, 89 S.W.3d at 677.


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          Johnson contends that there was only one piece of evidence linking him to

the firearm—Officer Curtis’s impeachment testimony that Johnson admitted

ownership of the firearm at the scene. From this premise, Johnson argues that his

conviction must be reversed because the jury improperly relied on that

impeachment evidence to establish Johnson’s guilt. We disagree with Johnson’s

premise.

          Aside from Officer Curtis’s impeachment testimony about Johnson’s

admission, the State adduced evidence sufficient to affirmatively link Johnson to

the firearm. First, it is undisputed that Johnson was the only person present in the

townhouse when the police officers executed the search warrant and found the

firearm. See Evans, 202 S.W.3d at 162, n.12 (presence when search conducted is

affirmative link).     Second, Johnson admitted that he was responsible for the

townhouse. He testified that he lived in it alone and had been leasing it for over

six years. See id. (evidence that defendant had right to possess place where

contraband is found is affirmative link). Third, Officer Curtis testified that the

firearm was found in plain view on Johnson’s bedroom floor, lying among

Johnson’s personal items, and that the bedroom was adjacent to the computer area

where officers found Johnson. See id. (whether contraband was in plain view, as

well as proximity and accessibility of contraband to appellant are affirmative

links).



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      Johnson contends the evidence is insufficient because he was not in

exclusive possession of the townhouse and did not flee or otherwise exhibit

consciousness of guilt. According to Johnson, the State failed to prove exclusive

possession because he adduced evidence that his two former houseguests still had

keys to the townhouse, that an intruder had been in the townhouse earlier that day,

and that an officer planted the firearm. Johnson also correctly points out that there

was no evidence that he demonstrated a consciousness of guilt, because Officer

Curtis testified that Johnson was calm and did not attempt to flee. But these were

factors for the jury to consider in weighing the evidence, and we defer to the jury’s

resolution of these issues. See Henson v. State, 388 S.W.3d 762, 773 (Tex. App.—

Houston [1st Dist.] 2012), aff’d, 407 S.W.3d 764 (Tex. Crim. App. 2013) (“verdict

of guilty is an implicit finding rejecting the defendant’s [defensive] theory”);

Williams v. State, 313 S.W.3d 398 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d) (holding evidence sufficient to support conviction for unlawful possession of

firearm despite appellant’s cooperation with police and absence of evidence

showing appellant touched firearm where evidence showed appellant owned

vehicle in which firearm was found and firearm’s case was in plain view); Smith v.

State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d) (holding State is

not required to prove appellant had exclusive possession of the firearm).




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      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational juror could have found beyond a reasonable doubt that Johnson

committed the offense of felon in possession of a firearm. Accordingly, we hold

the evidence was legally sufficient to support the judgment. See Jones v. State,

338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011) (affirming conviction

for firearm possession where evidence showed appellant lived and paid rent at

residence where firearms were found, one of two firearms was in plain view in

same room with mail addressed to appellant, his wallet and medication were

located in other bedroom near other firearm, and others were present at the home),

aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012); Roland v. State, No. 14-11-00584-

CR, 2012 WL 2784404, at *3–4 (Tex. App.—Houston [14th Dist.] July 10, 2012,

no pet.) (affirming conviction for possession of controlled substance where

appellant admitted living in the home and was sitting in room adjacent to room in

which contraband was found in plain view and among appellant’s personal

documents); Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.]

2004, no pet.) (holding that appellant’s driver’s license and mobile phone bills in

close proximity to controlled substance were sufficient to link him to controlled

substance).

      Because we have concluded that evidence independent of the impeachment

testimony is sufficient to support the conviction, we reject Johnson’s contention



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that the jury must have improperly disregarded the trial court’s instruction

regarding the proper use of impeachment evidence. See Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc) (“We generally presume the

jury follows the trial court’s instructions in the manner presented.”); Hisey v. State,

129 S.W.3d 649, 654 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (“[T]he

jury is presumed to have understood and followed the court’s charge, absent

evidence to the contrary.”).

                                     Conclusion

      We affirm the trial court’s judgment.



                                                            Rebeca Huddle
                                                            Justice


Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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