                                                                                     ACCEPTED
                                                                                 06-14-00116-CR
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                            5/4/2015 10:45:47 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK

                 NO. 06-14-00116-CR & 06-14-00117-CR

____________________________________________________________
                                                  FILED IN
                                                         6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
                      IN THE COURT OF APPEALS            5/5/2015 9:09:00 AM
                                                             DEBBIE AUTREY
                            SIXTH DISTRICT                       Clerk


                    AT TEXARKANA, TEXAS
____________________________________________________________


                 JOSEPH JOHN GRUBBS, APPELLANT

                                    V.

               THE STATE OF TEXAS, APPELLEE
____________________________________________________________

             APPEAL IN CAUSE NUMBERS 29,725 & 29,417

               IN THE 354TH JUDICIAL DISTRICT COURT

                  OF HUNT COUNTY, TEXAS
____________________________________________________________

                    BRIEF FOR APPELLANT
____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes now the Appellant and submits this brief pursuant to the provisions

of the Texas Rules of Appellate Procedure in support of his request for the

judgment of conviction to be overturned in Cause No. 29,725 & 29,417



                  Appellant Requests Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011

Appellant’s Trial Attorney:
Toby Wilkinson
2815 Wesley St.
Greenville, TX 75401

Appellee:
The State of Texas by and through
Noble Walker
Steven Lilley

Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401

Appellee’s Trial Counsel:
Lauren Hudgeons
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401




                                                   2
                                    TABLE OF CONTENTS



Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 5

Issue Presented .......................................................................................... 6

Statement of the Facts ................................................................................ 7

Summary of the Argument .......................................................................... 8

Argument and Authorities ........................................................................... 9



        Issue Number One ........................................................................... 9

        The evidence is legally insufficient to support the conviction of
        Appellant for unlawful possession of a firearm by a felon or
        possession of identifying information.


Prayer for relief ........................................................................................ 19

Certificate Compliance of Typeface and Word Count................................ 20

Certificate of Service ................................................................................. 20




                                                                                                           3
                                     INDEX OF AUTHORITIES

FEDERAL CASE:

Jackson v. Virginia, 443 U.S. 307. .............................................................. 9

STATE CASES:

Bates v. State, 155 S.W.3d 212, 216-217 (Tex. App. Dallas 2004, not

pet.). ......................................................................................................... 10

Evans v. State 202 S.W. 3d 158, 166 (Tex. Crim. App. 2006)................... 11

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

pet. ref’d) .................................................................................................. 11

Jones v. State, 963 S.W.2d 826, 830 (Tex. App. Texarkana 1998, pet. ref’d).

................................................................................................................. 13

Nguyen v. State, 54 S.W.3d 49, 59 (Tex. App. Texarkana 2001, pet ref’d)12

Smith v. State, 118 S.W.3d 838, 842 (Tex. App. Texarkana 2003). .......... 10

Smith v. State, 176 S.W. 3d 907, 916 (Tex. App. Dallas 2005, pet. ref’d) . 10

Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App. 2005) ............... 9


STATE STATUTES:

TEX. PEN. CODE ANN §1.07(a)(39) (Casemaker 2015) ............................ 9

TEX. PEN. CODE ANN §6.01 (Casemaker 2015) ...................................... 9

TEX. PEN. CODE ANN §32.51(b-1)(1) (Casemaker 2015) ......................... 9

TEX. PEN. CODE ANN §46.04(a)(1) (Casemaker 2015) ............................ 9


                                                                                                                  4
                       STATEMENT OF THE CASE



     This is an appeal of two judgments and sentences in criminal cases

for the 354th Judicial District, in Hunt County, Texas. Appellant was

convicted by a jury for Unlawful possession of firearm by felon and unlawful

possession of identifying information. Appellant was assessed a sentence

of twenty five (25) years imprisonment for possession of a firearm by a

felon and five (5) years imprisonment for possession of identifying

information on July 3, 2014 by a jury. Notice of appeal was given on July

8, 2014. The clerk's record was filed November 10, 2014. The reporter's

record was filed on February 11, 2014.




                                                                            5
               ISSUES PRESENTED


ISSUE ONE:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE
CONVICTION OF APPELLANT UNLAWFUL POSSESSION OF A
FIREARM BY A FELON OR UNLAWFUL POSSESSION OF
IDENTIFYING INFORMATION.




                                                      6
                      STATEMENT OF THE FACTS

      At trial a Hunt County Deputy named Jay Shallow testified that on

August 12, 2013, he responded to a call at a residence in Quinlan, TX. (RR

Vol. 10 p. 46). Elizabeth Land and Appellant Grubbs were present at that

residence that night and had apparently had an argument. (RR Vol. 10 p.

91). The Residence and the truck and SUV parked there belonged to Land’s

sister and her husband. Also parked near the residence was the truck that

belonged to Appellant. (RR Vol. 10 p. 90).

      Deputy Shallow, stated at trial that after he had made contact with

Appellant he noticed Land emerge from the darkness and then detained

Appellant. Shallow then said he searched the area where Appellant had

come from. Shallow looked in their area slightly under a pickup truck and

found a .25 caliber pistol from that area as well as five debit cards with a

different person’s name on them. (RR Vol. 10 p. 51). Later, Shallow testified

that he found a .25 caliber bullet in the hands of Appellant. (RR Vol. 10 p.

54). Deputy Shallow admitted that he did not investigate who the pickup or

the SUV belonged to, and had the he known one of the pickups belonged to

Appellant he would have ‘possibly’ put it in his report but did not. (RR Vol.

10 p. 71).




                                                                           7
                     SUMMARY OF THE ARGUMENTS



Issue One:

      The evidence is legally insufficient to support the conviction of

Appellant for unlawful possession of a firearm or the conviction of unlawful

possession of identifying information.

      The evidence must show affirmative links between the defendant and

the contraband at the scene.

             Even when looking at all the evidence in the light most favorable

to the State, the evidence does not establish that the logical force of the

evidence affirmatively links the firearm or the debit cards, found at the

location where Appellant was arrested, to the Appellant himself. Simply

stated, there is a complete lack of evidence to establish any affirmative link,

which is required to sustain Appellant’s conviction.




                                                                             8
                                ARGUMENT

Issue One:         The evidence is legally insufficient to support the
             conviction of Appellant for unlawful possession of a firearm,
             or identifying information


      When reviewing legal sufficiency of the evidence, a Court must look at

all of the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found that the essential elements

of the offense were proven beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319; Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App.

2005). To support a conviction of the appellant, the State must prove beyond

a reasonable doubt that Grubbs 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 supervision, whichever date is later.

TEX. PEN. CODE ANN §46.04(a)(1) (Casemaker 2015). State must have

further proved that Grubbs possessed with the intent to defraud, identifying

information of another person without the other persons consent. TEX. PEN.

CODE ANN §32.51(b)(1). (Casemaker 2015). The actor is presumed to

have the intent to harm or defraud another if the actor possess three or more

other persons’ information.      TEX. PEN. CODE ANN §32.51(b-1)(1).

(Casemaker 2015).




                                                                             9
      In this case both charges against Appellant relate to the possession of

items found, a .25 caliber gun and debit cards (Contraband) were within

close proximity to each other. (RR Vol. 10 p. 51). Therefore in Appellant’s

analysis as to the insufficient evidence as to whether Appellant actually

possessed the contraband are made together.

      Possession means actual care, custody, control or management. TEX.

PEN. CODE ANN §1.07(a)(39) (Casemaker 2015). A person commits a

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

PEN. CODE ANN §6.01(a) (Casemaker 2015). 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. PEN. CODE ANN §6.01(b) (Casemaker 2015).

      The State must prove that appellant exercised actual care, control, or

custody of the firearm; he was conscious of his connection with the firearm;

and he possessed the firearm knowingly or intentionally. Smith v. State, 118

S.W.3d 838, 842 (Tex. App. Texarkana 2003).

      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. Bates v.

State, 155 S.W.3d 212, 216-217 (Tex. App. Dallas 2004, not pet.). The State

may establish possession by proving links which demonstrate that the



                                                                               10
defendant was conscious of his connection with the weapon and knew what

it was. James v. State, 264 S.W. 3d 215, 219 (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. Evans v. State

202 S.W. 3d 158, 166 (Tex. Crim. App. 2006); Smith v. State, 176 S.W. 3d

907, 916 (Tex. App. Dallas 2005, pet. ref’d). Factors that may establish

affirmative links to a firearm include whether:

      (1) the contraband was in a car driven by the accused; (2) the

      contraband was in a place owned by the accused; (3) the contraband

      was conveniently accessible to the accused; (4) the contraband was

      in plain view; (5) the contraband was found in an enclosed space; (6)

      the contraband was found on the same side of the car as the accused;

      (7) the conduct of the accused indicated a consciousness of guilt; (8)

      the accused had a special relationship to the contraband;             (9)

      occupants of the automobile gave conflicting statements about

      relevant matters; (10) affirmative statements connect the accused to

      the contraband.




                                                                            11
Nguyen v. State, 54 S.W.3d 49, 59 (Tex. App. Texarkana 2001, pet

ref’d).



          In Bates, that Court also stated that another relevant factor is if the

defendant attempted to flee. Bates v. State, 155 S.W. 3d 212, 217. Even

though there is no set formula of facts that would lead to a finding of a

sufficient amount of links, the Court of Criminal Appeals states that the logical

force of the evidence is dispositive, not the number of links. Evans v. State

202 S.W. 3d 158, 166 (Tex. Crim. App. 2006).

          Applying the factors and accompanying logical force of the evidence

standard set out in Evans, the State insufficiently relied on evidence which

was not enough to create the logical force necessary to allow a rational juror

to find that the appellant had the requisite knowledge and control over the

gun and credit cards that were found underneath the vehicle.

          In this case, the State did not prove beyond a reasonable doubt that

Grubbs knowingly or intentionally possessed the contraband that day. Here,

Grubbs was not seen to be in direct possession of the gun found by the

Deputy by the testifying officer or any other witness.

          Regardless of whether direct or circumstantial evidence is used, the

State must still establish that the accused’s connection to the substance is



                                                                              12
not merely fortuitous. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.

Texarkana 1998, pet. ref’d). Moreover, mere possession of a vehicle in

which contraband is found, without additional facts and circumstances

connecting the accused to the contraband, will not support a conviction for

possession. Id. And at the case at bar, Grubbs was not even definitively

identified to be in possession of one of the particular vehicles at the time the

Deputy arrived on scene.

       The contraband was not affirmatively linked to Ms. Grubbs in the

evidence presented at trial. Alternatively, no affirmative link can be made

taking into account the factors listed the Nguyen case.



1. Was the contraband in a car driven by the accused?

       In this case the answer is no. However, even though this factor is listed

first in Nguyen, its importance is diminished with the facts of this case

because the location of the contraband was found was so remote. Here the

contraband was found to be partially underneath a vehicle. (RR Vol. 10 p.

51).




                                                                             13
2. Was the contraband in a place owned by the accused?

     No, the house was owned by Elizabeth Land’s Sister and her husband.

(RR Vol. 10 p. 88). The state provided no other link of the Appellant to the

property.



3. Was the contraband conveniently accessible to the accused?

     Even though when the Deputy arrived the area was dark, he stated

that Appellant came from the area where contraband was ultimately found.

(RR Vol. 10 p. 51). Yet there was no evidence presented that the contraband

conveniently accessible to Grubbs or any other person.



4. Was the contraband in plain view?

     As stated in factor number 3 when the Deputy arrived the area was

dark. But the deputy had the added benefit of the use of a flashlight where

the Appellant did not. (See Sates Exhibit 7). Meaning, the Appellant could

have been close to the contraband and not know it because of the lack of

light. Thus he would not have lingered near someone else’s contraband.




                                                                         14
5. Was the contraband found in an enclosed space?

      The space where the contraband was found, through the testimony of

the witness at trial was relatively open and could be assessable by others

before the Deputy arrived. In fact, the Deputy admitted that anyone could

have possessed the firearm and debit cards before he got there. (RR Vol.

10 p. 81).



6. Was the contraband found on the same side of the car as the

accused?

      As stated above the Deputy stated that Appellant came from the area

where contraband was ultimately found. But no more pinpointing evidence

was given.    Not even so much as that the deputy observed Appellant

standing towards the front or rear of the side of the vehicle and that was the

same place the Deputy found the contraband.



7. Did the conduct of the accused indicate a consciousness of guilt?

      In this case, there was no testimony that reflected any indication that

Grubbs had a consciousness of guilt. Merely that he was sweaty and that

he was not wearing a shirt. (RR Vol. 10 p. 48)




                                                                           15
8. Did the accused have a special relationship to the contraband?

      There is no evidence that indicated Grubbs had a special relationship

or even a connection to the gun.

  9. Did occupants of the automobile give conflicting statements about

relevant matters?

      No, both Appellant and Land denied a gun was involved. (RR Vol. 10

p. 50).



10.       Any affirmative statements connect the accused to the

contraband?

      Grubbs denied ownership of the gun at the time he was arrested.



11. Did the defendant attempt to flee?

      Here, there is no evidence that Grubbs attempted to flee. There was

no evidence that Grubbs tried to evade the Deputy when the Deputy arrived,

or even tried to run when he was pulled over. The only evidence given at

trial is that Grubbs pulled over and was

      The Evans case further states that the above is not an inclusive list for

affirmative links. Id. at 162 n.12. In other words, other factors may be taken




                                                                            16
into consideration in establishing a link between the accused and the

contraband.

      In this case, an additional factor warrants consideration: Were

fingerprints taken?

      If the contraband found at the scene was in Grubbs’ direct possession

at some point, and then hidden by Grubbs, it could have his fingerprints

somewhere on the gun. Here, extraction of fingerprints from the gun was

attempted but not found (RR Vol. 10 p. 117). Thus the affirmative link to

possession in this case is weakened even further

      The contraband was never found in Grubbs’ exclusive possession.

The State did not prove that appellant exercised actual care, control, or

custody of the contraband; he was conscious of his connection with the

firearm; and he possessed the firearm or even the debit cards knowingly or

intentionally.

      The Deputy does indeed state that Appellant had a bullet in his hand

matching the gun that was found, but there is no other evidence Appellant

possessed the actual firearm. Moreover, Appellant was not identified as the

person holding the gun by the 911 caller, again because they could not see.

In this case there were at least three other people who had access to the

residence where Appellant. They were Elizabeth Land, her sister and her



                                                                        17
sister’s husband. The video in this case shows at least two other officers

and even a police dog. Yet, little to none of the evidence they found if any

was presented at trial.

      Therefore, even resolving any facts in the State’s favor, there is

insufficient evidence to affirmatively link Grubbs to the contraband found

near a vehicle not definitively determined and his that was parked on

property that belongs to someone else. After an examination of the all

evidence and relevant factors, the logical force of the evidence dictates that

no affirmative link exists between Grubbs and the contraband. Grubbs’ mere

location is not enough to connect him to the contraband.         Grubbs was

convicted based solely upon his fortuitous and remote proximity to the

contraband found near a vehicle parked on someone else’s property.

Therefore his conviction should be overturned.




                                                                           18
                           PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

conviction in each of the above entitled and numbered causes be reversed

and acquit him. In the alternative Court finds only insufficient evidence in

one case that it at least be reversed. Appellant further prays for all other

lawful relief to which he may be entitled, at law or in equity.

                                                 Respectfully submitted,




                                                   /s/ Jason A. Duff_______
                                                 Jason A. Duff
                                                 State Bar No. 24059696
                                                 2615 Lee Street
                                                 P.O. Box 11
                                                 Greenville, TX 75403-0011

                                                 Attorney for the Appellant




                                                                              19
 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

     In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i),

the undersigned attorney or record certifies that Appellant's Brief contains

14-point typeface of the body of the brief, 12-point typeface for footnotes in

the brief and contains 2,222 words, excluding those words identified as not

being counted in appellate rule of procedure 9.4(i)(1), and was prepared on

Microsoft Word 2010.



____/s/ Jason A. Duff____               _________
Jason A. Duff
Attorney for the Appellee


                       CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to attorneys of record by electronic mail, and to

the Court of Appeals Sixth District in Texarkana via Electronic Filing System

on this the Fourth Day of May, 2015.



____/s/ Jason A. Duff____               _________
Jason A. Duff
Attorney for the Appellant




                                                                           20
