                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00483-CR

HAROLD ALEXANDER JACKSON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 87th District Court
                            Freestone County, Texas
                           Trial Court No. 11-067-CR


                         MEMORANDUM OPINION

      In three issues, appellant, Harold Alexander Jackson, challenges his conviction

for unlawful possession of a firearm by a felon, a third-degree felony. See TEX. PENAL

CODE ANN. § 46.04(a), (e) (West 2011). We affirm.

                                    I. BACKGROUND

      In the instant case, Jackson was charged by indictment with unlawful possession

of a firearm by a felon. Included in the indictment were enhancement paragraphs

referencing Jackson’s prior convictions for felony burglary of a building and felony
possession of a controlled substance.        At trial, Jackson pleaded “true” to the

enhancement paragraph referencing his conviction for felony possession of a controlled

substance. At the conclusion of the trial, the jury found Jackson guilty of the charged

offense. The trial court subsequently sentenced Jackson to eight years’ confinement,

suspended the sentence, and placed Jackson on community supervision for eight years.

In addition, the trial court ordered that Jackson serve 180 days in the county jail and

participate in 192 hours of community service as conditions of his community

supervision. This appeal followed.

                                    II. THE JURY CHARGE

        In his second and third issues, Jackson asserts that he was egregiously harmed by

the trial court’s failure to properly define: (1) “possession” with regard to the issue of

voluntariness; and (2) “intentionally” and “knowingly” in the jury charge.

        A. Applicable Law

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

Jackson v. State                                                                    Page 2
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

        Jackson admits that he did not object to the jury charge; thus, he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments

of the parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

        B. Discussion

        Here, the charge defined possession as involving the “care, custody, control, or

management of property.” This language tracks section 1.07(a)(39) of the penal code.

See TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2013). The charge also provided

complete statutory definitions for “intentionally” and “knowingly.” See id. § 6.03(a)-(b)

(West 2011). Specifically, the definitions section of the charge stated the following:

        A person acts intentionally, or with intent, with respect to the nature of his
        conduct or to a result of his conduct when it is his conscious objective or
        desire to engage in the conduct or cause the result.

               A person acts knowingly, or with knowledge, with respect to the
        nature of his conduct or to circumstances surrounding his conduct when
        he is aware of the nature of his conduct or that the circumstances exist. A
        person acts knowingly, or with knowledge, with respect to a result of his
        conduct when he is aware that his conduct is reasonably certain to cause
        the result.


Jackson v. State                                                                         Page 3
The application portion of the charge provided:

         Now, if you find from the evidence beyond a reasonable doubt on or
         about the 16th day of December, 2010 that the defendant, HAROLD
         ALEXANDER JACKSON, having been previously convicted of a felony
         on the 15th day of January, 1992, in cause number 16,637 in the 86th
         District Court of Kaufman County, Texas in a case on the docket of said
         Court, and entitled The State of Texas vs[.] Harold Alexander Jackson, did
         then and there intentionally and knowingly possess a firearm after the
         fifth anniversary of the defendant’s release from confinement following
         conviction of said felony at a location other than the premises at which the
         defendant lived, to wit: Freestone County Road 240, Freestone County,
         Texas, then you will find the defendant guilty of the offense of unlawful
         possession of a firearm as charged in the indictment.

         Jackson complains that the charge should have included language contained in

section 6.01(b) of the penal code, which provides that possession is voluntary if the

possessor knowingly obtains or receives the thing possessed or is aware of his control of

the things for a sufficient time to permit him to terminate his control. Id. § 6.01(b) (West

2011).     Jackson also contends that the charge’s definitions of “intentionally” and

“knowingly” were not appropriately tailored to the offense. More specifically, Jackson

argues that these definitions should have been limited to the “nature-of-the conduct”

and the “circumstances-surrounding-the conduct” aspects of the requisite culpable

mental states.

         Assuming, without deciding, that it was error for the trial court to not include a

6.01(b) instruction as to voluntariness and to not limit the definitions of “intentionally”

and knowingly,” we cannot say that Jackson was egregiously harmed. John Thorn, a

Game Warden with the Texas Parks and Wildlife Department, testified that he received

a call from Charles Meyers about “road hunters” by the Plum farm near FM 489 and


Jackson v. State                                                                        Page 4
County Road 240 in Freestone County, Texas. Warden Thorn was told that the “road

hunters” had positioned their truck sideways in the road with its headlights shining out

in the field.      When he arrived at the scene, Warden Thorn observed two of the

occupants of the truck standing outside with two of their rifles placed on the hood of a

patrol car. Warden Thorn inspected the truck and saw that Jackson was still sitting in

the passenger’s seat. The occupants of the truck denied that there were any more guns

in the truck. However, after Jackson exited the vehicle, Warden Thorn noticed the “butt

of a rifle that was between the door and the passenger, the right, the front passenger

seat that was stopped was upfront and the barrel was pointing back.” The rifle was a

.270-caliber Remington Model 710; however, the removable magazine was not present

with the rifle.

        Law enforcement at the scene later found a magazine for a .270-caliber

Remington Model 710 in Jackson’s jacket pocket. Inside the magazine was “one Harley

brand .270 loaded cartridge . . . .” A loaded .308 round was also found in the floorboard

on the passenger side, between the front and back seat. Scott Pedford, one of the

occupants of the truck, testified that, when law enforcement arrived, two rifles were

found in the floorboard of the truck. Warden Thorn explained that these two rifles, in

particular, were accessible to “[a]nybody in the car.”     Pedford also admitted that

Jackson knew there were guns in the truck that were intended to be used for hunting.

        In his closing argument, defense counsel argued that the evidence did not

demonstrate that Jackson was in possession of a firearm. Defense counsel emphasized

that Jackson did not own the guns and that Pedford had tried to hide the rifles before

Jackson v. State                                                                   Page 5
the police arrived. In essence, defense counsel asserted that Jackson was not guilty of

the charged offense because he was merely in the vicinity of a gun.

        As noted above, in determining the actual degree of harm, we examine the entire

jury charge, the state of the evidence, including contested issues and weight of

probative evidence, the arguments of counsel, and other relevant information revealed

by the record of the trial as a whole. See Olivas, 202 S.W.3d at 144; see also Almanza, 686

S.W.2d at 171. Based on our review of the entire record, we do not believe that the

purported error affected the very basis of the case, deprived Jackson of a valuable right,

or vitally affected his defensive theory. See Olivas, 202 S.W.3d at 144; see also Almanza,

686 S.W.2d at 171. There was ample evidence demonstrating that Jackson’s connection

to the firearms was not merely fortuitous, and the jury could reasonably infer that

Jackson exercised care, custody, control, or management over the firearms voluntarily.

See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); see also Hart v. State,

89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating that a jury may infer intent or

knowledge from any facts that tend to prove its existence, including the acts, words,

and conduct of the accused).

        Moreover, the facts, as applied to the law in the application paragraph, pointed

the jury to the appropriate portion of the definitions of “intentionally” and

“knowingly.”       See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995)

(concluding, in a capital-murder case, that it was error for the trial court to not limit

additional language concerning the culpable mental state to proving the “conduct

element” of the underlying offense; however, “[r]eferring back to the definitions of

Jackson v. State                                                                      Page 6
culpable mental states, it is obvious that the ‘result of conduct’ and cause the result

language are the applicable portions of the full code definitions. We conclude that

because the facts, as applied to the law in the application paragraph, pointed the jury to

the appropriate portion of the definitions, no harm resulted from the court’s failure to

limit the definitions of the culpable mental states to proving the conduct element of the

underlying offense.”); see also Fields v. State, 966 S.W.2d 736, 730-40 (Tex. App.—San

Antonio 1998), rev’d on other grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999) (concluding

that the failure to limit mental states constitutes error; however, the error was

harmless). Accordingly, we cannot say that Jackson was egregiously harmed by the

charge, as presented. See Olivas, 202 S.W.3d at 144; see also Almanza, 686 S.W.2d at 171.

We therefore overrule Jackson’s second and third issues.

                              III. SUFFICIENCY OF THE EVIDENCE

        In his first issue, Jackson contends that the evidence is insufficient to establish

that he intentionally, knowingly, or voluntarily possessed a firearm. We disagree.

    A. Applicable Law

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
        (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
        “familiar standard gives full play to the responsibility of the trier of fact
        fairly to resolve conflicts in the testimony, to weigh the evidence, and to

Jackson v. State                                                                        Page 7
        draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
        U.S. at 319. “Each fact need not point directly and independently to the
        guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction.”
        Hooper, 214 S.W.3d at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.      Furthermore, direct and circumstantial

evidence are treated equally:       “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

Jackson v. State                                                                        Page 8
          To prove unlawful possession of a firearm by a felon, the State is required to

prove that the person possessed a firearm: (1) “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 is later”; or (2) after the period described by

subdivision one, at any location other than the premises at which the person lives. TEX.

PENAL CODE ANN. § 46.04(a). As noted above, the penal code defines possession as

“actual care, custody, control, or management.” Id. § 1.07(a)(39). 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 things for a sufficient time to permit

him to terminate his control. Id. § 6.01(b).

          The State must show: (1) that the accused exercised actual care, custody, control,

or management over the firearm; (2) that he was conscious of his connection with it; and

(3) 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. 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)).

Jackson v. State                                                                      Page 9
        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. 2-07-329-CR, 2-07-330-CR, 2009 Tex. App. LEXIS 1823, at **3-4 (Tex.

App.—Fort Worth Mar. 12, 2009, pet. ref’d) (mem. op., not designated for publication)

(“The . . . links doctrine 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); see also Allen v. State, 249 S.W.3d

680, 695 (Tex. App.—Austin 2008, no pet.) (“Proof of mere proximity to contraband is

insufficient to establish actual constructive possession or the element of knowledge.

Close proximity to the contraband, even when coupled with mere presence at the place

where the contraband is found, do not together justify a finding of knowing possession

of the contraband.”).

        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 found in an enclosed space. Smith, 176 S.W.3d

Jackson v. State                                                                       Page 10
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 determine whether

the elements of the offense have been established. See Smith, 176 S.W.3d at 916.

    B. Discussion

        As we explained in our analysis of Jackson’s jury-charge issues, Warden Thorn

received a call that “road hunters” had positioned their truck sideways in the road with

headlights shining out in the field. When he arrived, Warden Thorn observed two

occupants, including Pedford, standing outside the truck with two rifles that had been

discovered inside the truck and subsequently placed on top of a patrol car. Warden

Thorn also saw Jackson inside the truck in the passenger’s seat. The occupants of the

truck denied that they had any other guns in their possession. However, once Jackson

exited the vehicle, Warden Thorn observed a .270-caliber Remington Model 710 located

between the door and seat on the passenger’s side. The rifle’s magazine was missing.

        Law enforcement later found the missing magazine for the Remington Model 710

rifle inside Jackson’s jacket pocket; the magazine contained one round. A loaded .308

round was also found in the floorboard on the passenger side, between the front and

back seat. Pedford testified that the two rifles initially confiscated by law enforcement

were located in the floorboard of the truck—an enclosed space.            Warden Thorn

explained that these two rifles in particular were accessible to “[a]nybody in the car.”

Pedford later admitted that Jackson knew there were guns in truck that were intended

to be used for hunting. Warden Thorn also testified that, at the time of trial, none of the

occupants of the truck had claimed ownership of the rifle found in Jackson’s proximity.

Jackson v. State                                                                    Page 11
Nevertheless, Pedford, Jackson’s friend for more than ten years, claimed ownership of

the rifle at trial. Pedford also denied handing Jackson the magazine from the rifle;

instead, he speculated that the magazine “had to be on the floor.”

        Based on our review of the record, there was ample evidence demonstrating that

Jackson’s connection to the firearms was not merely fortuitous, and the jury could

reasonably infer that Jackson exercised care, custody, control, or management over the

firearms voluntarily. See Poindexter, 153 S.W.3d at 406; see also Hart, 89 S.W.3d at 64.

Moreover, based on the logical force of the factors articulated in Smith and Dixon, we

conclude that the elements of the offense—unlawful possession of a firearm by a

felon—have been established. See Smith, 176 S.W.3d at 916; Dixon, 918 S.W.3d at 681.

And to the extent that Pedford’s testimony created conflicts in the evidence, we note

that it is within the discretion of the factfinder—the jury, here—to resolve any conflicts

in the testimony, and we are to defer to the jury’s resolution of such conflicts. See

Jackson, 443 U.S. at 326, 99 S. Ct. 2792-93; see also Chambers, 805 S.W.2d at 461. Clearly,

by convicting Jackson of the charged offense, the jury resolved any conflicts in the

evidence against Jackson. We therefore conclude that the record contains sufficient

evidence to support Jackson’s conviction for unlawful possession of a firearm by a

felon. See TEX. PENAL CODE ANN. § 46.04(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Lucio, 351 S.W.3d at 894; Bates, 155 S.W.3d at 216; Smith, 118 S.W.3d at 841. We

overrule Jackson’s first issue.




Jackson v. State                                                                    Page 12
                                      IV. CONCLUSION

        Having overruled all of Jackson’s issues on appeal, we affirm the judgment of the

trial court.


                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 27, 2014
Do not publish
[CR25]




Jackson v. State                                                                  Page 13
