Opinion filed June 20, 2013




                                      In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-12-00060-CR
                                  __________

                     FELIX VALENZUELA, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 244th District Court
                              Ector County, Texas
                        Trial Court Cause No. C-38,736


                      MEMORANDUM OPINION
      The jury convicted Felix Valenzuela, Appellant, of the offense of unlawful
possession of a firearm by a felon, found the enhancement allegations to be true,
and assessed punishment at confinement for thirty years. We modify and affirm as
modified.
      In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence. He asserts that the evidence is insufficient to show that he possessed the
firearm at 12849 Jasper, Odessa, Texas, a location at which he did not live, as
alleged in the indictment. We review Appellant’s challenge to the sufficiency of
the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S.
307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v.
State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we examine all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and any reasonable
inferences from it, any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury, as the trier of fact, was
the sole judge of the credibility of the witnesses and of the weight to be given to
their testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04
(West 1979). As such, the jury was free to believe or disbelieve all or any part of
any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986).
      The record shows, and Appellant does not dispute, that Appellant was a
convicted felon at the time of the charged offense and that more than five years had
elapsed since his release from confinement. Thus, in January 2010, at the time of
the charged offense, Appellant could not legally possess a firearm at any location
other than the premises at which he lived. TEX. PENAL CODE ANN. § 46.04(a)(2)
(West 2011). A person commits a possession offense if he voluntarily possesses
the prohibited item. Bollinger v. State, 224 S.W.3d 768, 774 (Tex. App.—Eastland
2007, pet. ref’d) (citing TEX. PENAL CODE ANN. § 6.01(a) (West 2011)).
“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.” PENAL § 6.01(b). To prove possession, the State


                                          2
must show: (1) that the accused exercised actual care, control, or custody over the
firearm; (2) that he was conscious of his connection with it; and (3) that he
possessed the firearm knowingly or intentionally. Bollinger, 224 S.W.3d at 773.
The State does not have to prove that the accused had exclusive possession of the
firearm; joint possession is sufficient to sustain a conviction. Id. at 774 (citing
Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)).
      Kadell Jude Ridley testified that he purchased a lever-action .22 magnum
rifle from Appellant in December 2009 for $100. On January 9, 2010, Appellant
and two friends, Victor Gonzales and Jesse Lerma Lopez Jr., came to Ridley’s
house, and Appellant told Ridley that he wanted the rifle back. Ridley went inside,
retrieved the rifle, and offered to sell it back to Appellant for $100. According to
Ridley, Appellant was “[d]runk and angry” and said, “[N]o, I want it.” Ridley
informed Appellant that the rifle belonged to Ridley and that, if Appellant wanted
it back, he would have to pay for it. Appellant then “reached over and grabbed it
and yanked it out of [Ridley’s] hands.”      Ridley testified that Appellant then
chambered a round and fired it into the driveway. Ridley backed away, and
Appellant got in his car and left.     Ridley testified that Lopez and Gonzales
remained in the car and that an acquaintance, Adam Granado Chavarria, was in the
driveway with Ridley.
      Ridley called the police, and Deputy Richard Brewer was sent to Ridley’s
house. After Ridley told him what Appellant had done, Deputy Brewer left and
located Appellant at 12849 Jasper Street. The trailer house at that address was not
Appellant’s home, but was the home of Lopez. When Deputy Brewer arrived at
that location, he observed Appellant “by the back porch” and the rifle “leaning up
against the handrail” near Appellant. Deputy Brewer testified that the porch was
small, “maybe three by three,” and had stairs off to one side. Appellant was not on


                                         3
the porch; he “was standing off to the side of the porch by the east rail.” The rifle
was on the porch, but Appellant was standing “right beside” it. He “could have
reached out and grabbed it.” Lopez was inside the trailer house, and Gonzales was
next to the vehicle. Deputy Brewer did not see Appellant hold or touch the rifle
and did not know who put it on the porch. Deputy Brewer testified that he arrested
Appellant because “[Appellant] was in control, possession of that firearm.”
Nobody else was near the rifle.
         Lopez testified that he was driving Appellant’s car on the evening of the
incident and that Appellant and Gonzales were in the car when they saw Ridley
walking down the street. They pulled up next to Ridley, and Appellant asked
Ridley about some money that Ridley owed him. Ridley told Appellant to go to
Ridley’s house to get paid. When they arrived, Ridley and Chavarria came out of
Ridley’s house; Ridley was holding a rifle. Appellant walked up to Ridley, and
Ridley pointed the rifle at Appellant. Lopez did not hear the conversation between
Appellant and Ridley. Lopez testified that he got out of the car and then saw
Appellant knock the rifle out of Ridley’s hands. When Appellant hit the rifle, it
fired and fell to the ground. Lopez testified that he walked over and picked the
rifle up off the ground and that Appellant did not grab the rifle or otherwise
exercise any kind of control over it. Lopez said he picked the rifle up because he
was afraid Ridley might pick it up and start shooting at them. Lopez testified that
he put the rifle in the backseat of the car, drove to his house, and put the rifle on his
porch.
         Appellant testified similarly to Lopez regarding the incident with Ridley and
the events of that night. Appellant said that Ridley “was acting weird, hostile”
toward Appellant, presumably because Ridley did not want to pay Appellant the
$40 that Appellant said Ridley owed. According to Appellant, he “slapped” the


                                           4
rifle when Ridley pointed it at him.        The rifle fired, and Ridley dropped it.
Appellant testified that he did not grab the rifle or pick it up off the ground and that
the only time he touched the rifle was when he slapped it out of Ridley’s hands.
      Gonzales testified that he did not remember that night very well because he
had been drinking and “was feeling pretty good.” He said Appellant “took the gun
away from” Ridley. Gonzales testified that Lopez did not get out of the car but
that Appellant took the rifle from Ridley and handed it to Lopez in the car.
Gonzales did not recall the rifle being in the backseat; he recalled it being in the
front next to Lopez.
      Chavarria testified at trial; however, because both Appellant and Ridley
were friends of his, Chavarria did not testify willingly. Chavarria testified that the
rifle had belonged to Appellant and that Ridley had purchased the rifle from
Appellant. On the night of the incident at issue in this case, Appellant showed up
at Ridley’s house. Appellant, who looked intoxicated, told Ridley that he wanted
the rifle back. Ridley was holding the rifle—but was not pointing it at anybody—
when Appellant reached for it. As Appellant grabbed the rifle and jerked it away
from Ridley, the rifle “misfire[d]”; Ridley had had his hand on the trigger.
Appellant then said, “[T]his is how you shoot it,” and he fired a shot into the
ground. Appellant, Lopez, and Gonzales then left. Chavarria testified that he
thought both Appellant and Lopez got out of the car; he was sure that Appellant
got out but was not sure that Lopez got out of the car. Chavarria was not sure
whether Lopez or Appellant took the rifle to the car.
      Based upon the record in this case, we hold that a rational jury could have
found that Appellant possessed the firearm as alleged in the indictment. In this
case, some evidence showed that Appellant had owned the rifle, that he had sold it
to Ridley, that he wanted it back, that he went to Ridley’s house to retrieve it, that


                                           5
he took it away from Ridley, and that he took it to his car and left with it. There
was also evidence that the rifle was within Appellant’s reach when Deputy Brewer
observed Appellant and the rifle at 12849 Jasper and that nobody else was near the
rifle. From this evidence, a jury could have reasonably inferred that Appellant
exercised actual care, custody, control, or management over the rifle at 12849
Jasper. The jury was free to determine that the testimony of Lopez and Appellant
was not credible and that Appellant had at least joint possession of the rifle. See
Sharp, 707 S.W.2d at 614; Bollinger, 224 S.W.3d at 774.
      Contrary to Appellant’s assertion, evidence was also introduced to show that
Appellant did not live at 12849 Jasper. Deputy Brewer testified that that was not
Appellant’s home. Lopez testified that the trailer house at that address belonged to
him and that he lived there. Additionally, Appellant testified that he did not own
any weapons or have any weapons at his residence because his wife does not allow
guns at their house, and Appellant repeatedly referred to the residence at 12849
Jasper as “[Lopez’s] house.” Appellant’s sole issue is overruled.
      We note, however, that there are errors in the judgment that need to be
corrected. The judgment erroneously reflects “N/A” with respect to the
enhancement pleas and findings and also erroneously reflects that the offense is a
“1ST DEGREE FELONY.”            The offense, however, is a third-degree felony
pursuant to TEX. PENAL CODE ANN. § 46.04(e) (West 2011). Furthermore, the
record shows that Appellant pleaded true to both enhancement allegations, that the
jury found both enhancement allegations to be true, and that Appellant was
punished as a habitual offender under TEX. PENAL CODE ANN. § 12.42(d) (West
Supp. 2012).
      We modify the judgment of the trial court to reflect that Appellant pleaded
“TRUE” to the first and second enhancement paragraphs, that the jury found the


                                         6
first and second enhancement paragraphs to be “TRUE,” and that the degree of the
offense committed by Appellant was a “3RD DEGREE FELONY.” As modified,
we affirm.




                                                 JIM R. WRIGHT
                                                 CHIEF JUSTICE


June 20, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                        7
