                                     NO. 07-07-0149-CR
                                     NO. 07-07-0150-CR

                               IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                  OCTOBER 23, 2007
                            _____________________________

                                   CHARLES RAY HALL,

                                                                Appellant

                                              v.

                                  THE STATE OF TEXAS,

                                                        Appellee
                          _________________________________

                FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

              NOS. 54,218-D & 54,219-D; HON. DON EMERSON, PRESIDING
                         _______________________________

                                 Memorandum Opinion
                          ________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Charles Ray Hall appeals his convictions for unlawfully possessing a firearm by a

felon and possessing a prohibited weapon. Via eight issues, he contends that the

evidence is legally and factually insufficient to support both convictions. We disagree and

affirm.

                                        Background

          Lieutenant Martin Birkenfeld of the Amarillo Police Department testified that on

August 19, 2006, around 3:10 in the morning, he heard a “couple of popping sounds” which
he was unable to identify. Thereafter, he slowly drove towards the area from which the

sounds came. As he did so, he heard one more “pop” and eventually observed four

individuals walking down the street from where he thought the sounds emanated. The four

individuals saw Birkenfeld and began walking “the other way”; this caused the officer to

watch them. Eventually, he saw one with a “weapon of some type,” noted that “it looked

like a long gun. . . ,” called for back-up, and kept following them with his lights trained on

the group. Upon realizing that the weapon being carried was “definitely . . . a sawed-off

shotgun,” the officer activated his emergency lights and siren. At that point, the individuals

began running. Birkenfeld noted that the person carrying the shotgun was “wearing a dark

shirt, probably dark blue, and it had large white letters on the back.” The lettering made

it easy to describe the shirt, according to the officer.

       The group split up with the person carrying the shotgun running in a direction

different than the others. Birkenfeld followed him until the suspect was lost in an apartment

complex. Appellant was soon discovered by other officers hiding behind a bush in an alley

by the apartment complex. Upon seeing the detainee, Birkenfeld identified him as the

person with the gun. This identification was reiterated at trial. A sawed-off shotgun was

also found lying in weeds within five to ten feet of where appellant was arrested and within

the alley wherein appellant ran.

       At trial, appellant attempted to discredit Birkenfeld’s testimony by focusing on the

fact that the officer did not know what the other three individuals were wearing and,

therefore, may have confused appellant with one of the others. So too was it of import to

appellant that his fingerprints were not found on the weapon. Appellant also tried to show

that someone other than he could have been the person who actually had the gun.

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Despite this, Birkenfeld reiterated that he was not mistaken in identifying appellant as the

“one who was carrying the rifle [sic].”

       Testifying on his own behalf, appellant said that he had been at home in the early

hours of August 19th but some friends had come by and asked him to attend a party. In

fact, two parties were occurring at different ends of his apartment complex. He attended

the one that was closest to his apartment and drank beer for about two hours. At the time,

he purportedly observed an individual in possession of what he believed to be a firearm,

even though he was not sure what the object was. Once the police showed up everyone

scattered. According to appellant, he ran because he had been in trouble with the police

before and had been drinking. He also denied possessing the firearm.

       The defense also called Vernon Raynard Anderson, who testified that he was with

appellant the night of the incident and did not observe appellant carrying a gun. Yet, he

acknowledged that he left the party around midnight and was not present when the police

arrived.

                  Issues One - Eight - Legal and Factual Sufficiency

       Through his eight issues, appellant contends that the evidence was both legally and

factually insufficient to 1) prove he exercised care, custody or control over the weapon or

2) affirmatively link him to the weapon. We overrule the issues.

       Standard of Review

       The applicable standards of review can be found in Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App.1996), Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), and

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to them.



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       Next, in establishing possession, we use the same methodology used to establish

guilt for possessing controlled substances. Nguyen v. State, 54 S.W.3d 49, 52-53 (Tex.

App.–Texarkana 2001, pet. ref'd). Thus, the State must show that the accused 1)

exercised actual care, control, or custody over the firearm, 2) was conscious of his

connection with it, and (3) possessed the firearm knowingly or intentionally. Id. citing,

Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995).

       The record before us contains eyewitness testimony identifying appellant as the one

who possessed and ran with the shotgun. Whether to believe it was up to the factfinder.

But, if believed, it provided some evidence upon which a rational jury could conclude,

beyond reasonable doubt, that appellant intentionally or knowingly possessed the weapon.

       To the extent appellant and others gave testimony that contradicted Birkenfeld’s,

we again note that it was the jury’s prerogative to choose who to believe. Moreover, other

evidence such as appellant’s effort to flee and hide as well as the proximity between the

shotgun’s location and appellant’s place of arrest lend further credence to the officer’s

identification of appellant as the possessor.

       In sum, viewing all the evidence in the light most favorable to the verdict leads us

to conclude that both verdicts enjoyed the support of legally sufficient evidence. And

though the evidence was contradictory, the verdicts were not against the great weight and

preponderance of the evidence nor clearly wrong or manifestly unjust. So, they too were

supported by factually sufficient evidence.

       Accordingly, we affirm the judgments of the trial court.

                                                  Per Curiam
Do not publish.




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