                                                                                ACCEPTED
                                                                           03-14-00673-CR
                                                                                  4142604
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
March 11, 2015                                                       2/13/2015 11:33:02 AM
                                                                          JEFFREY D. KYLE
                                                                                    CLERK
                            No. 03-14-00673-CR

                         IN THE COURT OF APPEALS
                    FOR THE THIRD JUDICIAL DISTRICT OF
                          TEXAS AT AUSTIN, TEXAS

                                 ********
         CHRISTOPHER ANTHONY GEORGE
                                   VS.

                   THE STATE OF TEXAS
                                 ********

                 ON APPEAL FROM THE 264th DISTRICT COURT
                         OF BELL COUNTY, TEXAS
                             Cause No. 72,519

                                  ******

                        STATE’S BRIEF
                                  ******

                                HENRY GARZA
                                DISTRICT ATTORNEY

                                BOB D. ODOM
                                ASSISTANT DISTRICT ATTORNEY
                                P.O. Box 540
                                Belton, Tx 76513
                                (254) 933-5215
                                FAX (254) 933-5704
                                DistrictAttorney@co.bell.tx.us
                                SBA No. 15200000


        Oral Argument Not Requested


                                    1
                   TABLE OF CONTENTS

ITEM                                                       PAGE

Index of Authorities ………………………………………………………………….              3

Statement Regarding Oral Argument …………………………………………           4

Statement of the Case ……………………………………………………………….              4

Statement of Facts ……………………………………………………………………                5

Summary of State’s Argument …………………………………………………..            7

Argument and Authorities ………………………………………………………..             7

       Issue on Appeal ……………………………………………………………….             7
                  SUFFICIENT EVIDENCE TO PROVE APPELLANT
                  IN POSSESSION OF FIREARM BEFORE 5TH
                  ANNIVERSARY OF RELEASE FROM
                  INCARCERATION OR PAROLE?

       Standard of Review ………………………………………………………….            7

       Application and Analysis ………………………………………………….         8

Prayer ………………………………………………………………………………………                    13

Certificate of Compliance with Rule 9 …………………………………………      14

Certificate of Service ………………………………………………………………….           14




                               2
                   INDEX OF AUTHORITIES

CASES                                                            PAGE

Brooks v. State, 323 S.W. 3d 893 (Tx. Cr. App. 2011) …………………..     7

Clayton v. State, 235 S.W.3d 772 (Tx. Cr. App. 2007) ………………….      8

Fagan v. State, 362 S.W.3d 796 ………………………………………………..               11
     (Tx. App. Texarkana 6th Dist. 2012 no pet.)

Gill v. State, 57 S.W.3d 540 ……………………………………………………….               10
        (Tx. App. Waco 10th Dist. 2001 no pet.)

Saldana v. State, 418 S.W.3d 722 ………………………………………………               11
     (Tx. App. Amarillo 7th Dist. 2013 no pet.)

Tawater v. State, No. 06-14-00075-CR, ……………………………………..            12
     2014 Tex. App. LEXIS 13176, (Tx. App. Texarkana
     6th Dist. 2014 no pet.), not designated for publication.


OTHER

Texas Penal Code

     Section 46.04(a)(1) …………………………………………………………                    8




                                  3
STATEMENT REGARDING ORAL ARGUMENT
        The State does not request oral argument.

STATEMENT OF THE CASE

        The Appellant, Christopher Anthony George, was charged by

indictment with the offense of Unlawful Possession of a Firearm by a

Felon. (CR-5). He was tried before a jury upon his plea of “not guilty”

(RR6-6).

        The Appellant was found guilty by the jury (CR-52; RR7-94). The

Appellant then entered a plea of true to the allegations in the second

paragraph of the indictment alleging another prior felony conviction for

the offense of Burglary of a Habitation for the purpose of enhancement.

(CR-5; RR7-95).

        The trial court considered the issue as to punishment, without a

jury.   The court sentenced the Appellant to 18 years in the Texas

Department of Corrections Institutional Division. (CR-53; RR8-11).

        The Appellant gave timely notice of appeal (CR-58) and the trial

court certified his right to do so. (CR-47).




                                      4
STATEMENT OF FACTS

      On appeal the Appellant raises a single issue as to the sufficiency

of the evidence to prove that he was found in possession of the firearm

within 5 years of the date of his release from confinement or parole

following his felony conviction. For that reason the State would offer

only a very brief summary of the evidence as to the possession of the

firearm.

      On February 10, 2014, the Appellant was arrested by the police

alone in a vehicle that was stopped moments after shots had been fired

at a home from that vehicle. (RR6-27-33, 46). He had no valid driver’s

license. (RR6-53). The officer observed the Appellant partially open the

driver’s door and make furtive movements under the seat. (RR6-46, 47).

      The officer observed a spent shell casing on the driver’s side front

floorboard of the car. (RR6-51). As the officer was patting him down,

the Appellant told him that he could not have a weapon because he was

on parole. (RR6-51). The officer did not locate a firearm in the vehicle.

(RR6- 52). The Appellant was arrested and his car was impounded.

(RR6-53, 54).




                                    5
      Subsequently a loaded magazine (RR6-88, 89) and a .40 caliber

handgun were found in the vehicle by the tow truck operator. (RR6-90).

Bullet fragments found at the house that had been fired at were

consistent with a .40 caliber bullet and the shell casing found in the car

had been fired by the weapon that was recovered. (RR6-0, 21, 25).

      The indictment alleged that the Appellant had possessed the

firearm before the fifth anniversary of his release from confinement or

parole with respect to his conviction on January 29, 2009 for the offense

of Robbery in Cause No. 63,584 in the 264th District Court of Bell County,

Texas. (CR-5). In order to prove this allegation the State offered a

certified copy of the Judgment of Conviction in Cause No. 63,584 for the

offense of Robbery entered on January 29, 2010 and wherein the

Appellant was sentenced to three years in prison as State’s Exhibit 1.

(RR8).   After testimony by fingerprint expert Karl Ortiz that the

fingerprints taken in that conviction were those of the Appellant, the

exhibit was admitted without objection. (RR6-24, 24).

      Also admitted without objection (RR6-24) was State’s Exhibit 2, a

certified copy of records showing that the Appellant was transferred to

the Texas Department of Corrections in Cause Number 63,584 on

February 18, 2009. (CR8).


                                    6
SUMMARY OF STATE’S ARGUMENT

      The evidence was sufficient to prove beyond a reasonable doubt

that the Appellant possessed the firearm before the fifth anniversary of

his release from incarceration or from parole as alleged in the

indictment in that it clearly showed that he was incarcerated in the

State prison for that offense less than five years from the date of the

offense and he admitted that he was on parole and could not possess a

firearm when he was arrested.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Was the evidence sufficient to prove beyond a reasonable doubt

that the Appellant possessed the firearm before the fifth anniversary of

his conviction or parole as alleged in the indictment?

Standard of Review

      In reviewing the sufficiency of the evidence the court must

consider all of the evidence in the light most favorable to the verdict and

determine whether, based upon all the evidence and reasonable

inferences therefrom, a rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323


                                    7
S.W.3d 893, 912 (Tx.Cr.App. 2011); Clayton v. State, 235 S.W.3d 772, 778

(Tx.Cr.App. 2007).

Application and Analysis

      A person who has been convicted of a felony commits an offense if

he possesses a firearm after conviction and before the fifth anniversary

of the person’s release from confinement following conviction for a

felony or the person’s release from supervision under community

supervision, parole or mandatory supervision. Section 46.04(a)(1),

Texas Penal Code. The indictment in this case charged that the Appellant

possessed a firearm before the fifth anniversary of his release from

confinement or parole for his conviction for robbery in Cause No.

63,584 in the 264th District Court of Bell County, Texas. That conviction

occurred on January 29, 2009. (CR-5).

      The Appellant does not contest the sufficiency of the evidence to

prove that he was in possession of a firearm nor that he was convicted

of the felony alleged in the indictment. Instead, he claims that the

evidence was insufficient to prove that he possessed the firearm before

the fifth anniversary or his release from confinement or parole. The

evidence, however, clearly is sufficient to do so.    It consists of the

following:


                                   8
    The Appellant was convicted of the felony offense of robbery on

      January 29, 2009 and sentenced to serve three years in the

      penitentiary.

    He was transferred to prison to serve his sentence in that case on

      February 18, 2009 and was incarcerated on that date. (State’s

      Exhibit 2 CR8).

    He was arrested in possession of the firearm on February 10,

      2014, eight days short of five years after the date his incarceration

      in the penitentiary began.

    When he was questioned about the firearm on February 10, 2014,

      the Appellant stated that he could not have a firearm because he

      was on parole.

      The Appellant was arrested for possession of a firearm 5 years

and 11 days after the date of his conviction. The statute requires,

however that he be found in possession of the firearm within 5 years of

his release from confinement or parole.

      While the Appellant is correct that the State did not prove the

exact date of his release from confinement or parole, it did, however,

prove that his confinement in the penitentiary began on February 18,

2009. Therefore he could not have been released from confinement by

                                    9
that time. Even in the very unlikely event that he was released the same

day he arrived, he was still incarcerated within the 5 year period from

that day when he was arrested for felon in possession of a firearm on

February 10, 2014, or 8 days short of the expiration of that 5 year

period. Moreover, he readily told the officer that he was on parole when

he was arrested.

      In Gill v. State, 57 S.W.3d 540 (Tx. App. Waco 10th Dist. no pet.),

the defendant challenged the sufficiency of the evidence to prove that he

possessed the firearm within the 5 year period after his release from

confinement. The Court of Appeals noted that documentary evidence

had been admitted showing the date in which he was received into

custody at the Texas Department of Criminal Justice and affirmed the

judgment of conviction because he committed the offense less than 5

years after he went to prison and thus, “…he necessarily committed it

within 5 years after he was released from prison”. The Court observed

that, although it would have been useful to have proven the release date,

it was not necessary under the circumstances. Gill at 546.

      Gill is precisely in point. Because the Appellant was received in

prison less than 5 years before he was arrested for possession of a

firearm he necessarily committed that offense within 5 years after his


                                   10
release from prison.     In this case the Appellant was arrested for

possession of the firearm 8 days short of the fifth anniversary of his

confinement in the penitentiary.

      The Appellant’s reliance on Fagan v. State, 362 S.W.3d 796 (Tx.

App. Texarkana 6th Dist. 2012, rev. ref.) is misplaced because in that case

the defendant was convicted on October 28, 2004 and given a four year

sentence with 238 days credit and the offense occurred more than 5

years later. Thus it was possible that the defendant could have been

released from confinement or parole after the expiration of the 5 year

period. Fagan at 800. Unlike this case, there was no evidence showing

that the defendant was still incarcerated and had not been released at a

time less than 5 years afterwards.

      Likewise in Saldana v. State, 418 S.W.3d 722, 726 (Tx. App.

Amarillo 7th Dist. 2013 no pet.), there was no evidence as to the date of

release from confinement but only as to the date of the conviction and

the date of the felon in possession offense 5 years and 5 months later.

The Court observed that there was no other evidence in the record to

establish the date of release and that merely asking the jury to “do the

math” based on that evidence was not sufficient. In the present case,

however, there was other evidence that showed that the Appellant had


                                     11
not been released from confinement more than 5 years before his arrest

for felon in possession of a firearm. He was still incarcerated, having

just been transferred to prison less than 5 years before that arrest.

      The Appellant also said that he was on parole at the time of this

arrest. In Tawater v. State, No. 06-14-00075-CR, 2014 Tex. App. LEXIS

13176 (Tx. App. Texarkana 6th Dist. 2014, no pet.), not designated for

publication, the evidence was held sufficient to support a conviction for

felon in possession of a firearm where the judgment of conviction was

introduced into evidence and the evidence showed that the defendant

had told the investigating officer that he was a felon.          The only

difference here is that the Appellant clearly said he was on parole and

could not possess a firearm when he was arrested with the firearm

rather than simply that he was a felon.

      The Appellant counters that he might have been on parole for

some offense other than that alleged in the indictment, however, that

admission when coupled with all of the other evidence and viewed from

the stand point most favorable to the verdict certainly is probative on

the issue.

      The evidence in this case clearly showed that the Appellant was

still incarcerated less than 5 years before he was arrested with a firearm


                                    12
in this case. Therefore, he was necessarily not outside of the 5 year

statutory limitation for felon in possession of a firearm. He also told the

officer that he was on parole when he was arrested. When all of the

evidence is viewed from the standpoint most favorable to the verdict,

the jury could clearly have reasonably found that the Appellant

possessed the firearm before the fifth anniversary of his release from

confinement or parole.

                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                     13
     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 1780 words.




                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                   CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Erica Copeland, Counsel for Appellant, by electronic

transfer via Emil, addressed to her at ecopeland63@yahoo.com on this

13th day of February , 2015.




                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




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