                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00042-CR



         ROBERT BRUCE SWAPSY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 123rd District Court
                Panola County, Texas
            Trial Court No. 2017-C-0196




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                         OPINION
       A Panola County jury found Robert Bruce Swapsy guilty of unlawful possession of a

firearm by a felon. The trial court sentenced Swapsy to eight years’ imprisonment and ordered

him to pay a $10,000.00 fine, but suspended the sentence in favor of placing Swapsy on community

supervision for five years. In his sole point of error on appeal, Swapsy argues that the evidence is

legally insufficient to sustain his conviction.

       We find that legally sufficient evidence supports Swapsy’s conviction. However, we

modify the trial court’s judgment to correctly reflect that he was convicted by a jury and that there

was no plea bargain agreement. We affirm the trial court’s judgment, as modified.

I.     Legally Sufficient Evidence Supports Swapsy’s Conviction

       A.      Standard of Review

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review

focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J.,

concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,




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214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

       Section 46.04 of the Texas Penal Code states, in relevant part,

       A person who has been convicted of a felony commits an offense if he or she
       possesses a firearm: . . .

               after conviction and before the fifth anniversary of the person’s release from
               confinement following conviction of the felony or the person’s release from
               supervision under community supervision, parole, or mandatory
               supervision, whichever date is later.

TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). Here, the State’s indictment alleged that

Swapsy, “having been convicted of the offense of Violate OP/Other Prior on the 21st day of June,

2012, in cause #12CR-5105 in the Circuit Court of Cook County, Illinois, intentionally and

knowingly possess[ed] a firearm before the fifth anniversary of the defendant[’s] release from

confinement following conviction of the felony.” Here, Swapsy argues only that the evidence was

insufficient to establish that he knowingly possessed the firearm.




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        A.     The Links Test

        “Possession” is defined as “actual care, custody, control, or management.” TEX. PENAL

CODE ANN. § 1.07(a)(39) (West Supp. 2018). “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

2001). To obtain a conviction for possession of a firearm, the State must show that the accused

not only exercised actual care, control, or custody of the firearm, but also that he was conscious of

his connection with it and that he possessed it knowingly. See Brown v. State, 911 S.W.2d 744,

747 (Tex. Crim. App. 1995); Smith v. State, 118 S.W.3d 838, 842 (Tex. App.—Texarkana 2003,

no pet.). “[E]vidence which affirmatively links him to it suffices for proof that he possessed it

knowingly.” Brown, 911 S.W.2d at 747. However, these affirmative links must demonstrate that

“the accused was aware of the object, knew what it was, and recognized his or her connection to

it.” Smith, 118 S.W.3d at 842 (citing Gill v. State, 57 S.W.3d 540, 544 (Tex. App.—Waco 2001,

no pet.)).

        The evidence showing these links may be direct or circumstantial, but the evidence must

establish that the connection between the accused and the firearm is more than fortuitous. Davis

v. State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002, pet. ref’d). Therefore, the mere

presence of the accused at the location where a firearm is found is not sufficient, in and of itself,

to establish his knowing possession. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.

2006). This rule protects the innocent bystander (such as a relative, friend, or even stranger to the

actual possessor) from conviction merely due to his fortuitous proximity to a firearm belonging to

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someone else. See id. However, the defendant’s presence or proximity to the weapon, combined

with other evidence, may be sufficient to establish this element. Id.

          Certain factors, either alone or in combination, may be considered in deciding whether the

evidence is legally sufficient to circumstantially establish an accused’s knowing possession of a

firearm. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref’d); Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.—Dallas 2004, no pet.); Smith, 118

S.W.3d at 842; Nguyen v. State, 54 S.W.3d 49, 53 (Tex. App.—Texarkana 2001, pet. ref’d),

overruled on other grounds by Fagan v. State, 362 S.W.3d 796 (Tex. App.—Texarkana 2012, pet.

ref’d).

                  These factors include: (1) the defendant’s presence when the search was
          conducted, (2) whether the firearm was in plain view, (3) whether the defendant
          was in close proximity to and had access to the firearm, (4) whether the defendant
          had a special connection to the firearm, (5) whether the defendant possessed other
          contraband when arrested, (6) whether the defendant made incriminating
          statements when arrested, (7) whether the defendant attempted to flee, (8) whether
          the defendant made furtive gestures, (9) whether the defendant owned or had the
          right to possess the place where the firearm was found, (10) whether the place
          where the firearm was found was enclosed, (11) whether conflicting statements on
          relevant matters were given by the persons involved, and (12) whether the
          defendant’s conduct indicated a consciousness of guilt.

Gordy v. State, No. 06-18-00057-CR, 2018 WL 447222, at *3 (Tex. App.––Texarkana Sept. 19,

2018, no pet. h.) (mem. op., not designated for publication).

          “The absence of various links does not constitute evidence of innocence to be weighed

against the links present.” Williams v. State, 313 S.W.3d 393, 398 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). Rather, it is the logical force of the links, rather than the number of links, that is

dispositive. Evans, 202 S.W.3d at 161–62; Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—

                                                   5
Dallas 2005, pet. ref’d). Further, the links need not exclude every other reasonable hypothesis but

the defendant’s guilt. Brown, 911 S.W.2d at 748.

       B.      The Evidence at Trial

        Jim Burkett, a special agent with the Texas Department of Public Safety’s Criminal

Investigation Division and Organized Crime Division, and David Barnett, a deputy with the

Harrison County Sheriff’s Office, travelled to Swapsy’s home during a random visit designed to

ensure that Swapsy was complying with sex-offender registration requirements. Burkett described

Swapsy and his girlfriend of nineteen years, Melody Merritt, as compliant and very polite. Burkett

testified that Swapsy and Merritt swiftly provided consent to search the home after they both

denied having any firearms in the home. Soon thereafter, Barnett found a loaded firearm in a bag

containing “a lot of bullets” of two different calibers in the bottom drawer of a nightstand situated

on the left side of the bed in the master bedroom. Only Swapsy and Merritt slept in that bedroom.

       Burkett testified that the top drawer contained a man’s wallet with Swapsy’s expired

insurance card and public library card, Swapy’s pharmacy prescription, and a letter addressed to

him, which was postmarked three weeks before the search. Photographs of the scene confirmed

the contents of the nightstand, as well as Burkett’s testimony that the gun was found in the bottom

drawer among hats, baseball caps, toboggans, and “a brim type hat.” Burkett classified these items

as men’s clothing.

       According to Burkett, Swapsy denied ownership of the gun or knowledge of its existence

in the house. Merritt immediately reported that she had inherited the gun from her father and

echoed that Swapsy knew nothing of it. According to Burkett, Swapsy also denied using the

                                                 6
nightstand or having access to it. While Burkett described Swapsy as compliant and polite, he

testified, “[Swapsy] was evasive and I didn’t find his answers to be consistent with what was found

in . . . the drawers, once the firearm was found.” Burkett added that although Swapsy did not

exhibit any overt signs that he was hiding anything, he did not believe Swapsy’s denial of control

over the nightstand or his claim that he was unaware of the gun. Therefore, after verifying that

Swapsy was a convicted felon and that five years had not yet passed since his release, Burkett

arrested Swapsy for unlawful possession of a firearm.

            Merritt testified in Swapsy’s defense at trial. She told the jury that she had inherited the

gun from her father and had never told Swapsy about the weapon. Merritt said that officers had

seen a BB gun in plain sight on top of the dresser and that although she had told the police about

the BB gun, she lied about having other firearms in the house. When questioned about the contents

of the bottom drawer of the nightstand, Merritt admitted that some of the hats belonged to Swapsy,

but explained that she had stored them and that Swapsy had “not been in that drawer,” even though

he wore some of the hats on rare occasions. Merritt further stated that Swapsy kept all of his

clothes (including the vast majority of hats worn by him) in “a little den area that we call the man

cave.” 1 Initially, when asked whether Swapsy had opened the bottom drawer, Merritt replied,

“Maybe -- the bottom drawer, no. The top one, yes.” She later testified that Swapsy had opened

the bottom drawer but opined that he was unaware of the gun because he had never discussed the

firearm with her.




1
    Burkett testified that there was another bedroom that did not appear to be lived in which contained Swapsy’s storage.
                                                             7
       Merritt was then questioned about the other contents on or in the nightstand. She testified

that her electronic tablet, which Swapsy sometimes used, was on top of the nightstand. According

to Merritt, the top drawer contained jewelry belonging to both of them, Swapsy’s old wallet, and

his expired insurance card and library card. Merritt said that she had placed the letter addressed

to Swapsy in the nightstand so he could find it easily. She testified, “When I have back problems,

I sleep on the side of the bed where they found the gun, which is his side.” While she admitted

that the nightstand was on Swapsy’s side of the bed, Merritt claimed that she had been sleeping on

that side at the time the gun was found.

       Critically, Merritt testified she had wrapped the gun in a white towel before placing it

underneath the hats in the bottom drawer. After Merritt’s statement, Barnett was recalled to testify

and stated that the gun had not been wrapped in a towel when he discovered it. Barnett explained

that he would have noticed a white towel wrapped around the weapon and would have reported it.

He further drew the jury’s attention to the fact that there were no towels in the photographs taken

of the contents of the nightstand.

       C.      Analysis

       The State need not prove the accused had exclusive possession of the firearm; joint

possession is sufficient to sustain a conviction. Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco

2014, no pet.). Here, Swapsy points to his denial of any connection with the firearm, Merritt’s

testimony that he did not know about the gun, and Burkett’s testimony that he did not make any

furtive gestures, incriminating statements, attempts to flee, or other gestures indicating a

consciousness of guilt.

                                                 8
       However, the firearm was found in the nightstand in Swapsy’s bedroom located beside

what was normally Swapsy’s side of the bed. Merritt testified that the nightstand, including the

bottom drawer where the gun was found, contained several items that belonged to Swapsy. Even

though Merritt initially testified that Swapsy had not accessed the drawer, there was no evidence

indicating that the drawer was locked, and she later conceded that he had opened it. This suggested

that Swapsy had access to the firearm.

       We find that the evidence established, at a minimum, links 1, 3, and 10 between Swapsy

and the gun recovered during the search. More importantly, we find that the logical force of these

links, taken together, had a strong tendency to connect Swapsy to the firearm and established that

Swapsy’s connection with the firearm was more than just fortuitous.

       Moreover, Merritt’s testimony and Swapsy’s denial of possession of the weapon required

a resolution of conflicting evidence, as well as an evaluation of witness credibility and the weight

to be given to their testimony. These are functions left to the jury’s sole discretion. See Cain v.

State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). Merritt claimed that she had wrapped the

gun in a white towel before concealing it in the bottom drawer of the nightstand, but Barnett

testified that there was no towel around the gun when it was found. This discovery placed Merritt’s

credibility into question and supported a rational inference that the towel could have been removed

by Swapsy, since only he and Merritt shared the drawer. Accordingly, the jury was free to reject

Merritt’s testimony, as well as Swapsy’s denial of knowledge of and access to the gun.




                                                 9
         We find that legally sufficient evidence supported the jury’s finding that Swapsy

committed the offense of felon in possession of a firearm. We overrule Swapsy’s sole point of

error.

II.      The Judgment Must Be Modified

         The trial court’s judgment incorrectly reflects that the conviction was the result of a bench

trial and that the sentence was a result of a plea bargain agreement. Yet, the appellate record

establishes that Swapsy was convicted by a jury and that his sentence was the not the result of a

plea bargain. We have the authority to modify the judgment to make the record speak the truth.

TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v.

State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Accordingly, we modify the

trial court’s judgment to reflect that Swapsy was convicted by a jury and that there was no plea

bargain agreement.

III.     Conclusion

         We modify the trial court’s judgment (1) to reflect that Swapsy was convicted by a jury

and (2) by removing the reference that Swapsy’s sentence was the result of a plea bargain

agreement. As modified, we affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:         October 4, 2018
Date Decided:           October 11, 2018

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