                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00077-CR


FRANK JOE RAMIREZ                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                   STATE


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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      Appellant Frank Joe Ramirez appeals his conviction for unlawful

possession of a firearm by a felon. In two points, Ramirez contends that the

evidence is insufficient to support his conviction and that his co-occupant

girlfriend has a Second Amendment right to own, possess, and bear firearms.

We will affirm.
      1
       See Tex. R. App. P. 47.4.
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Hood County Sheriff’s Department Investigators Justin Caraway and

James Luckie were investigating an aggravated robbery. The investigators went

to Ramirez’s home looking for a sawed-off shotgun used in the robbery and

found Ramirez in his front yard.       The investigators asked if Ramirez knew

anything about a sawed-off shotgun, and he said that he could not possess any

guns because he is a convicted felon but that someone named Chris had tried to

sell him some guns. Ramirez told the investigators that the only gun he had in

the house was a .22 rifle. Ramirez gave the investigators consent to search the

residence. Investigator Caraway saw a .22 caliber rifle near the entryway inside

the residence and bullets on a nearby bookcase. Ramirez told the investigators

that the rifle belonged to his girlfriend, Brenda Poteet, who also lived in the home.

      Later that day, Investigator Caraway checked Ramirez’s criminal history

and confirmed that he was a convicted felon.           The next day, Investigator

Caraway obtained an arrest warrant, returned to Ramirez’s home, and arrested

Ramirez. The rifle was in the same location as it was on the previous day.

      During a custodial interview following the arrest, Ramirez admitted that he

knew the rifle was in the house, that he handled the rifle the day before his

arrest, that he previously handled the rifle to remove a jammed bullet for Poteet,

and that he had constant access to the rifle because it was not secured in a

location out of his access.




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        Ramirez’s brother Roger Montoya testified that he owned the house where

Ramirez and Poteet resided together. Montoya said that Ramirez was working

out of town and that Poteet borrowed the firearm from Montoya for protection

while Ramirez was gone. Montoya was aware of Ramirez’s record and intended

that Ramirez would not have access to the rifle.

        Poteet testified that she and Ramirez lived together with his fifteen-month-

old great-nephew and that she borrowed the rifle to protect herself and the child

while Ramirez was working out of town. Poteet explained that she also went out

of town while Ramirez was gone and that he was expected to return after she left

town. She intended to return the rifle to Montoya on her way out of town so that

it would not be there when Ramirez returned home, but she forgot it when she

left.

        The jury found Ramirez guilty of unlawful possession of a firearm by felon.

At the sentencing trial, Ramirez pleaded true to one enhancement paragraph and

four habitual paragraphs, and the jury assessed punishment at twenty-five years’

confinement.2



                         III. SUFFICIENCY OF THE EVIDENCE




        2
       See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2012) (providing for
enhanced sentence of life or between twenty-five and ninety-nine years’
imprisonment).


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      In his first point, Ramirez argues that the presence of the firearm in his

residence is insufficient to establish that he had actual care, custody, control, or

management of the firearm.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).         Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we determine whether the

necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict.


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Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).               We must

presume that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Clayton, 235 S.W.3d at 778.

           B. Law on Unlawful Possession of a Firearm by a Felon

      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 person

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 (West 2011).

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

management.”      Id. § 1.07(a)(39) (West Supp. 2012).         A person commits a

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

§ 6.01(a) (West 2011).      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 must show that the defendant exercised actual care, control, or

custody of the firearm, that he was conscious of his connection with the firearm,

and that he possessed the firearm knowingly or intentionally. Bates v. State, 155

S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.); Smith v. State, 118 S.W.3d

838, 841 (Tex. App.—Texarkana 2003, no pet.). The State’s evidence may be

either direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.


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App. 1995). The State does not have to prove that the accused had exclusive

possession of the firearm; joint possession is sufficient to sustain a conviction.

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

Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)). 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, the State must offer additional, independent

facts and circumstances that link the defendant to the firearm. 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 Mar. 12, 2009, pet. ref’d) (mem. op., not designated for

publication) (“The . . . links doctrine also applies to the possession of firearms.”));

see Bates, 155 S.W.3d at 216–17. The purpose of linking the accused to the

firearm is to protect an innocent bystander from conviction solely on his fortuitous

proximity to a firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim.

App. 2005).

      In determining whether sufficient links exist, an appellate court examines

factors such as whether the defendant owned the premises where the firearm

was found, whether the firearm was in plain view, 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


                                          6
found in an enclosed space. Smith, 176 S.W.3d at 916; Dixon v. State, 918

S.W.2d 678, 681 (Tex. App.—Beaumont 1996, no pet.). 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.

                     C. Sufficient Evidence of Possession

      Ramirez does not dispute that he had a prior felony conviction, and the

record establishes that he was convicted in 2005 for the felony offense of failure

to register as a sex offender. He argues that insufficient evidence exists that he

possessed the firearm found in the home he shared with his girlfriend.

      Ramirez argues that because he had just returned home from working out

of town, and because the officers found him outside the home, there was

insufficient evidence to show that he knew about the firearm found inside his

home. However, evidence at trial showed several facts linking him to the firearm.

Ramirez did not own the residence, but he lived there and was the only person

present at the time. The investigators found the firearm in plain view leaning

against the wall next to the front door inside the home.         Ramirez admitted

knowing that the rifle was in the home, and he told officers after his arrest that he

handled the rifle the previous day and that he had previously handled it to clear a

jammed bullet for Poteet. Ramirez also admitted that he had access to the rifle

at all times because it was not locked or secured in a place that he could not

access.




                                         7
      Viewing the evidence in the light most favorable to the prosecution, as we

must, we hold that sufficient evidence exists that Ramirez had actual care,

custody, control, or management of the rifle to support the jury’s verdict. See

Tex. Penal Code Ann. §§ 1.07(a)(39), 46.04; Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. We overrule Ramirez’s first point.

                    IV. SECOND AMENDMENT RIGHT OF POTEET

      In his second point, Ramirez argues that the fact that Poteet lives with a

convicted felon should not abrogate her Second Amendment right to own,

possess, and bear firearms.

      One may not ordinarily claim standing to vindicate the constitutional rights

of a third party. Singleton v. Wulff, 428 U.S. 106, 112–13, 96 S. Ct. 2868, 2873

(1976).   The issue of standing involves two distinct questions: whether the

proponent of a particular legal right alleges “injury in fact,” that is, whether the

proponent suffers a concrete injury from the operation of the challenged statute,

and whether the proponent asserts his own legal rights and interests rather than

those of third parties as the basis of the suit. Id.; see Rakas v. Illinois, 439 U.S.

128, 139–40, 99 S. Ct. 421, 428 (1978).

      Here, Ramirez is attempting to assert the legal rights and interests of

Poteet, a third party.   Because he lacks standing to do so, we overrule his

second point.




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                                 V. CONCLUSION

      Having overruled Ramirez’s two points, we affirm the trial court’s judgment.




                                                  PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: October 18, 2012




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