Opinion issued July 30, 2015




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-14-00345-CR
                         ———————————
                 BRANDON DERRAIL EVANS, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 212th District Court
                        Galveston County, Texas
                     Trial Court Case No. 13CR1338


                       MEMORANDUM OPINION

     A jury convicted appellant Brandon Derrail Evans of unlawful possession of

a firearm by a felon, see TEX. PENAL CODE § 46.04(a), and the court assessed

punishment at five years in prison. See id. § 12.34 (third-degree felony
punishment). In a single issue on appeal, Evans contends that the evidence was

insufficient to support the jury’s verdict. We affirm.

                                    Background

      At approximately 10:00 p.m. on May 17, 2003, Texas City Police

Department Corporal D. Grandstaff responded to an anonymous tip about three

trespassers in the parking lot of an apartment complex, which was in an area that

recently had experienced numerous convenience store robberies and automobile

break-ins. The trespassers were identified only as “black males” and “suspicious

persons” who did “not belong there.” Corporal Grandstaff drove through the

parking lot with his “alley” lights activated, and he saw three black men sitting in a

parked car. One man was in the front passenger seat, and two men were in the back

seat. Nobody was in the driver’s seat. Appellant Brandon Derrail Evans was seated

in the back, behind the driver’s seat.

      The man in the front passenger seat looked at Corporal Grandstaff and then

turned to look toward the floorboard. The two men in the back were bent down, but

they “popped up” and then bent down again twice in quick succession. Corporal

Grandstaff later advised another officer that the men in the back had been reaching

toward the floorboard.

      Corporal Grandstaff contacted Texas City Police Officer R. Johnston, who

lived at the apartment complex and served as a “courtesy officer,” monitoring


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suspicious activity when it arose. Although Officer Johnston recognized all the

apartment residents by sight, when he looked at the men in the car he did not

recognize them.

      One passenger began to get out, but Corporal Grandstaff ordered him to get

back in the car. Because he smelled marijuana as he approached, Corporal

Grandstaff began to detain all three passengers so that he could safely search the

car. Texas City Police Officer J. Clement then arrived to assist in detaining the

men and searching the vehicle.

      Officer Clement removed Evans from the car and asked if he lived at the

apartment complex. Evans responded that he did not live there, but his uncle did.

However, Evans could not identify his uncle by name or say where his apartment

was located.

      Officer Clement spotted a gun on the floorboard where Evans’s feet had

been. The gun was partially hidden by a glove and a bag, but the officer testified

that he could see it clearly with only the aid of a flashlight. At trial, he described

the gun as a chrome or steel .357 revolver, which had a filed-off serial number and

which was loaded with “five hollow .38 special rounds.”

      Upon searching the rest of the car, the policemen also found several pairs of

gloves, a ski mask, and two hooded sweatshirts. One of the hooded sweatshirts was

found on the back seat on the passenger side. In the pocket of this sweatshirt was


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another handgun. In addition, the officers found a “marijuana roach” on the front

floorboard and a “dime-sized or quarter-sized Ziploc baggy that appeared to have

synthetic marijuana inside.”

      Evans was charged with the unlawful possession of a firearm by a felon. At

trial, he stipulated that he had previously been convicted of a felony offense and

that it had been less than five years since his release from confinement for that

offense.

      Officer Grandstaff testified that he determined that the owner of the car was

Sharlene White, who told him that her son Germane had used it that night. Neither

Sharlene nor Germane were in the car when the officer approached it in the

parking lot. Sharlene said that Germane had been at a convenience store near the

apartment complex and that the car had been towed.

      The jury found Evans guilty of the charged offense, and the court assessed

punishment of five years in prison.

                                      Analysis

      In a single issue on appeal, Evans contends that the evidence is legally

insufficient to support the jury’s verdict. In particular, he argues that the evidence

was insufficient to link him to the handgun found in the car.

      When evaluating a legal-sufficiency challenge, we consider all of the

evidence in the light most favorable to the verdict and determine whether any


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rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The

standard is the same for both direct and circumstantial evidence cases. Carrizales

v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d

701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh

any evidence, or evaluate the credibility of any witnesses, as this is the function of

the trier of fact. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.–Houston [1st Dist.] 2012,

pet. ref’d).

       To prove the offense of unlawful possession of a firearm by a felon, the

State must show that the accused was convicted previously of a felony offense and

possessed a firearm after the conviction and before the fifth anniversary of his

release from confinement or from community supervision, parole, or mandatory

supervision, whichever date is later. TEX. PENAL CODE § 46.04(a); James v. State,

264 S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Evans

stipulated that he had been convicted previously of a felony and the fifth

anniversary of his release from confinement for that felony had not yet occurred.

       “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


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permit him to terminate his control.” TEX. PENAL CODE § 6.01(b); see James, 264

S.W.3d at 218. “If the firearm is not found on the defendant or is not in his

exclusive possession, the evidence must link him to the firearm.” Williams v. State,

313 S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); accord

James, 264 S.W.3d at 218–19. The evidence must establish that the defendant’s

connection with the contraband was more than fortuitous. See Evans v. State, 202

S.W.3d 158, 161 (Tex. Crim. App. 2006). Among the many possible factors that

we may consider to evaluate whether the evidence supports a finding that there is a

link between the defendant and the contraband are whether: (1) the contraband was

in plain view; (2) the defendant was the owner of the location where the

contraband was found; (3) the defendant was in close proximity and had ready

access to the contraband; (4) the defendant’s conduct indicated a consciousness of

guilt, including extreme nervousness or furtive gestures; (5) the defendant had a

special connection or relationship to the contraband; (6) the place where the

contraband was found was enclosed; (7) contraband was found on the defendant;

(8) the defendant attempted to flee; and (9) affirmative statements connect the

defendant to the contraband, including incriminating statements made by the

defendant when arrested. James, 264 S.W.3d at 219. It is not the number of links

that is dispositive, but rather the logical force of all of the evidence, both direct and

circumstantial. Evans, 202 S.W.3d at 162. The absence of various links does not


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constitute evidence of innocence to be weighed against the links present.

Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James, 264

S.W.3d at 219.

       On appeal, Evans challenges only the sufficiency of the evidence to prove

that he possessed the gun found on the floorboard. He concedes that he was in the

car and the gun was within his reach. But he argues that there was no evidence as

to how long he had been in the car or whether he could have seen the gun in the

dark. He also contends that it was possible that other occupants of the car had

access to the gun. Finally, he devotes the bulk of his analysis to explaining why the

other links that the Court of Criminal Appeals has identified as relevant are absent

in this case.

       Factors 1 and 3: The gun was found in plain view where Evans’s feet had

been before he got out of the car. The first and third factors weigh in favor of the

jury’s verdict. Officer Clement testified that the gun was in plain view—that is, it

was not completely hidden in a bag or completely obscured by other objects placed

on top of it. In addition to his testimony, two photographs of the floorboard as the

officers found it were entered into evidence at trial. The jury was free to rely on

both the testimony and the photographic evidence to determine that the gun was

visible. While the jury was free to consider the fact that it was dark and how that

may have contributed to whether Evans could see the gun, there was sufficient


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evidence upon which the jury could have relied to determine that the gun was in

plain view. See Adames, 353 S.W.3d at 860; Wiley, 388 S.W.3d at 813. Likewise,

Officer Clement testified that the gun was located where Evans’s feet had been

before he got out of the car. This was also depicted in the photographs, which

showed the gun on the floorboard behind the driver’s seat. Evans does not deny

that the gun was within his reach.

      Factor 4: Corporal Grandstaff saw Evans repeatedly ducking and reaching

toward the floorboard. Corporal Grandstaff testified that he had his alley lights on

when he entered the parking lot and that he was able to see Evans and the other

two men repeatedly duck down and look out the window toward him. He testified

that this behavior was unusual and made him suspicious. Officer Clement testified

that Grandstaff told him he had seen the men in the car reaching toward the

floorboard. Evans contends that his ducking movements could be explained as a

response to the shining of the bright alley light toward the car. However, it was for

the jury to resolve any such dispute about the significance of the evidence. Because

there was evidence upon which the jury could have relied in concluding that Evans

made furtive gestures, we conclude that this factor supports the jury’s verdict.

      Other circumstantial evidence supports the jury’s verdict. In addition, in this

case, the State offered significant other circumstantial evidence upon which the

jury could have relied in concluding that Evans’s connection to the gun was not


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merely fortuitous. Evans, 202 S.W.3d at 161. Corporal Grandstaff testified that the

apartment complex was in an area that had recently experienced numerous

convenience store robberies and automobile break-ins and that there was a

convenience store across the street. It was late at night, and the passengers of the

car were neither apartment residents nor visitors. There was no connection shown

between Evans and the other passengers and the owner of the car, who believed her

car had been towed. Although it was a warm night in Galveston County, two

hooded sweatshirts, a ski mask, and three pairs of gloves were found in the

passenger area of the car. Marijuana, a controlled substance, was found in the car

and the odor of it emanated from the car when Corporal Grandstaff approached.

Finally, the officers found two loaded handguns in the car. The one that was within

Evans’s reach was loaded and bore no serial number because it had been filed off.

Corporal Grandstaff testified that it is illegal for anyone to possess a firearm with a

filed-off serial number. Considering this circumstantial evidence as a whole, the

jury could have reasonably concluded that Evans’s connection to the gun was not

merely fortuitous. See id.

      Finally, we are not persuaded by Evans’s argument that the evidence is

insufficient because of the absence of evidence of some of the other links that the

Court of Criminal Appeals has previously identified. Our analysis is not one of

mathematical computation and the absence of various links does not establish his


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innocence. See Hernandez, 538 S.W.2d at 13; James, 264 S.W.3d at 219. We

conclude that a rational jury could have found beyond a reasonable doubt that

Evans possessed the gun that was found on the rear floorboard of the car. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525. We

overrule Evans’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.



                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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