                            NUMBER 13-11-00564-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JEFF PAUL RIEDNER,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 36th District Court
                         of Aransas County, Texas.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
      Appellant, Jeff Paul Riedner, was convicted of felony theft, a state jail felony, see

TEX. PENAL CODE ANN. § 31.03 (West Supp. 2011), and unlawful possession of a

firearm, see id. § 46.04 (West 2011), enhanced to a second degree felony, see id. §
12.42 (West Supp. 2011). By three issues, appellant contends that the evidence is

insufficient and that the trial court improperly admitted evidence.1 We affirm.

                                        I.      BACKGROUND

       Brandi Reeder, a game warden in Rockport, Texas, testified that on November

28, 2010 she was called to a property located in Aransas County because “there was a

person on this property.” Eventually, Warden Reeder came across appellant, who was

driving a golf cart. Appellant was in an area that is completely fenced in. Warden

Reeder only saw one entrance to the property. She did not know whether there was a

break in the fence. Warden Reeder did not see anybody else on the property besides

appellant.

       Warden Reeder said that when she asked appellant what he was doing, he

replied that he was “spreading corn” for the landowner. According to Warden Reeder,

appellant denied that he was hunting on the property.                  Warden Reeder said that

appellant identified the land owner as “Mr. Kelmer.”2 Warden Reeder did not determine

the identity of Mr. Kelmer. Warden Reeder described the corn as “deer corn” and said,

“A lot of people spread it for deer or hogs.”

       Warden Reeder testified that when she asked appellant whether he had any

guns, “he kind of hesitated for a moment.” Warden Reeder stated that she had seen

appellant driving towards her from the location where she eventually found some guns.

She testified that as she began to walk toward the “brush motte[,] he then replied, ‘Yes,

I do have guns in there.’ . . . whenever he admitted the guns I called my partners to let


       1
           We have renumbered and reorganized appellant’s issues.
       2
           According to Warden Reeder, the property is owned by the Degussa plant.


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them know that I was there. . . .” According to Warden Reeder, appellant then offered

to get the guns for her, and she told him, “No, sir. You wait right here.” Warden Reeder

stated that she went into the bush and found the weapons, which included a “9mm

Smith & Wesson pistol and an A.J. Aubrey 12-gauge shotgun.”

      Warden Reeder agreed that appellant was cooperative with her. She testified

that appellant stated that he was going to show her where to find the weapons. She

stated, “He said he would get them for me. Whenever I walked back to—about along

the roadway where I walked to where I would have been in line to walk into the brush

and started to make a move to do so[,] he said that he would get the guns for me, in

which I told him, no, I would retrieve them myself.” Warden Reeder explained that she

did not know the situation and that she did not want to compromise her safety by

allowing him to retrieve the weapons.     Warden Reeder stated that after appellant

admitted that the weapons were his, she asked him why he had them, but that “[h]e

didn’t really have an answer.” When the State asked, “Did he ever acknowledge that he

had possession of those weapons,” Warden Reeder replied, “Yes. Yes, he did.” The

State asked, “How did he do that?” Warden Reeder responded:

             Later, whenever I ran the weapons and the 9 mm came up to be
      stolen, reported as stolen in TCIC/NCIC, then he admitted that he should
      not have borrowed that gun from his friend or something to that effect. It
      was he should not have received the gun from an acquaintance of his.

      Richard (Marty) Martin, a game warden, testified that on November 28, 2010, he

was present when appellant was taken into custody. Warden Martin assisted by patting

appellant down, placing him in handcuffs, placing him in the patrol vehicle, and

strapping him in for transportation. Warden Martin stated that he searched the vicinity

for other people and no one else was in the area except for the other game wardens.

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       On cross-examination, Warden Martin stated that appellant told him that if he had

seen a hog, he would have shot it, and he produced a legal hunting license. On re-

direct examination, the State asked Warden Martin to clarify with what weapon

appellant would have shot a hog. Warden Martin replied, “Either . . . the shotgun or the

pistol that was recovered near[]by the area where I approached him.” Warden Martin

stated that he was present when appellant was informed that the gun was stolen and

that appellant said “that he shouldn’t have taken that gun or shouldn’t have had it.”

                               II.         STANDARD OF REVIEW

       In a sufficiency review, we examine the evidence in the light most favorable to

the verdict to determine whether any rational fact-finder could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). The

fact-finder is the exclusive judge of the facts, the credibility of witnesses, and of the

weight to be given testimony.         Brooks, 323 S.W.3d at 899. We must resolve any

evidentiary inconsistencies in favor of the judgment. Id.

                                     II.    APPLICABLE LAW

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). A person commits the offense of unlawful possession of a

firearm if the person:    (1) was previously convicted of a felony offense; and (2)

possessed a firearm after the conviction and before the fifth anniversary of his release

from confinement or from supervision under community supervision, parole, or



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mandatory supervision, whichever date is later.                      See TEX. PENAL CODE ANN. §

46.04(a)(1).

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

sufficiency of the evidence under the rules adopted in cases of possession of a

controlled substance. Coleman v. State, 188 S.W.3d 708, 720 (Tex. App.—Tyler 2005,

pet. ref’d); Bates v. State, 155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). The

State must show that appellant: (1) exercised actual care, control, or custody of the

firearm; (2) was conscious of his connection with it; and (3) possessed the firearm

knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986);

Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, no pet.). A person

commits the offense of theft if that person “unlawfully appropriates property with intent

to deprive the owner of property.” See id. § 31.03.

                                    III.    POSSESSION OF THE GUN

        By his first and second issues, appellant challenges the sufficiency of the

evidence of both offenses on the basis that there is no evidence that anyone saw him in

actual possession of the firearm. Appellant does not challenge the other elements of

the offenses.3 The evidence viewed in the light most favorable to the verdict showed

that appellant admitted to Warden Reeder that he was in possession of the nine-

millimeter gun and that he would retrieve the gun from the bush for her. Appellant also

admitted to Warden Martin that he would have used the nine-millimeter gun to shoot a

hog if he would have had the opportunity. Therefore, a rational fact-finder could have


        3
          Although appellant generally states in his brief that the evidence is legally insufficient to support
the felony theft conviction, his only argument is that no one saw him actually possess the gun; therefore,
we will address the issues as framed by appellant.


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found beyond a reasonable doubt that appellant possessed the nine-millimeter gun.

See Jackson v, 443 U.S. at 319; see also Brooks, 323 S.W.3d at 898–99.                 The

evidence is legally sufficient to support both convictions. We overrule appellant’s first

and second issues.

                              IV.    ADMISSION OF THE GUN

       By his third issue, appellant contends that the trial court abused its discretion by

admitting the gun into evidence. Specifically, appellant argues that “it was not known at

the time of [his] arrest that the firearm named in the indictment had been stolen. It had

only [been] learned after” appellant was arrested. Appellant further alleges that he was

substantially harmed by the trial court’s admission of the gun.

       Although appellant objected to the gun at trial, he did not object on the basis he

now complains of on appeal. At trial, defense counsel did not state the legal basis for

his objection to admission of the gun. As such, his complaint has not been preserved

for our review.   See Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007)

(providing that appellate arguments must comport with objections at trial); Swain v.

State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (setting out that appellant did not

preserve issue for appellate review because his argument at trial did not comport with

his argument on appeal); see also Keeter v. State, 175 S.W.3d 756, 759–60 (Tex. Crim.

App. 2005) (explaining that we cannot find that the trial court erred when the appellant

failed to make the complaint to it). We overrule appellant’s third issue.




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                                  V.     CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgment.



                                                      __________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
16th day of August, 2012.




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