                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-257-CR


CURTIS R. MOFFETT                                                    APPELLANT

                                              V.

THE STATE OF TEXAS                                                        STATE

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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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                                    I. Introduction

      Appellant Curtis R. Moffett appeals his convictions for murder, solicitation

of capital murder, and felon in possession of a firearm. In two points, appellant

contends that the trial court erred by allowing the State’s investigator, who was

in the courtroom, to testify even though the Rule had been invoked and that the




      1
          … See T EX. R. A PP. P. 47.4.
evidence was factually insufficient to support his conviction for felon in

possession of a firearm. We affirm.

                              II. Background Facts

      On December 4, 2005, sometime after 12:00 a.m., Pauline Choice was

asleep at her mother’s house when she was awakened by appellant, Choice’s

cousin, knocking on the front door of the house. Appellant was upset and told

Choice that $35,000 was missing from his apartment.2 Appellant then accused

Choice, Kevin Jackson, and Dwayne Gratts of taking the money. According to

Choice, appellant pointed a chrome handgun that he had with him at her.

      Appellant then drove Choice to his apartment and had her make a police

report about the burglary. Choice did not tell the police that anything was

missing from the apartment. After making the police report, appellant, Choice,

and appellant’s girlfriend and baby drove to Jackson’s house so that appellant

could get his money back.3 After nobody answered the door, they drove back

to Choice’s mother’s house.




      2
      … Although appellant was living in the apartment, Choice used to live in
the apartment, the apartment was in Choice’s name, and Choice made the
monthly rent payments.
      3
        … Choice admitted that she took appellant to a home that Jackson used
to live in, not the house that he was currently living in, because she did not
want Jackson to get hurt.

                                       2
      Later that day, Choice went back to the apartment with appellant.

Roderick Young was also there.     Appellant then counted out $10,000 and

handed it to Choice to recount. After recounting the money, Choice handed it

back to appellant who gave it to Young. Choice testified that appellant gave

the money to Young to kill Dwayne.

      After learning from Choice that appellant wanted to talk to him about the

missing money, Dwayne called appellant and told him to meet him at his

mother’s house. Appellant stated that he was in the middle of something, but

that he would come over.

      That night, at approximately 11:00 p.m., Dwayne, his brother, Earl

Gratts, and a friend, Lavord McDonald, were sitting in Dwayne’s car outside

Dwayne’s mother’s house waiting for appellant when they noticed a car parked

down the street with its headlights on. Dwayne testified that shortly after the

car drove away, a man approached the house and asked Dwayne, Earl, and

Lavord if they had any weed. After answering “no” and telling the man to “just

move on,” Dwayne stated that the man began to walk up the street.

      At that time, Earl got out of the car to see who the man was. Dwayne

stated that after the man and Earl talked for approximately two-to-three

minutes, the man pulled out a gun and began shooting at Earl. Earl later died




                                      3
from the gunshot wounds.4 Both appellant and Young were arrested for the

murder.

      On June 22, 2007, a jury found appellant guilty of murder, solicitation of

capital murder, and felon in possession of a firearm.5 On July 6, 2007, after

finding the habitual offender notice to be true, the trial judge sentenced

appellant to life imprisonment for each count, to run concurrently.

                             III. Violation of the Rule

      In his first point, appellant argues that the trial court erred by allowing

Elvis Wells, a Tarrant County District Attorney’s Office investigator, to testify

as a rebuttal witness in violation of the Rule. See T EX. R. E VID. 614. The State

contends that although Wells was in the courtroom during Thomas McClure’s

testimony, the trial court did not abuse its discretion by allowing Wells to

testify.

      Rule 614 of the Texas Rules of Evidence provides in relevant part that

“[a]t the request of a party the court shall order witnesses excluded so that

they cannot hear the testimony of other witnesses, and it may make the order

of its own motion.” Id. The purpose of the Rule is to prevent the testimony of



      4
       … Choice testified that appellant told her that the wrong person had died
that night, that Dwayne, not Earl, was supposed to have been killed.
      5
          … Appellant was acquitted of one count of capital murder.

                                         4
one witness from influencing the testimony of another. Russell v. State, 155

S.W.3d 176, 179 (Tex. Crim. App. 2005). If a witness violates the Rule by

remaining in the courtroom after the Rule is invoked, the testimony of that

witness may be admitted or excluded at the trial court’s discretion. Bell v.

State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827

(1997).

      On appeal, the trial court’s ruling to admit testimony will not be disturbed

absent an abuse of discretion. Guerra v. State, 771 S.W.2d 453, 474 (Tex.

Crim. App. 1988), cert. denied, 492 U.S. 925 (1989). A two-step approach

must be taken when initially answering the question of whether a trial court has

abused its discretion by allowing a violation of the Rule. Id. at 476; Loven v.

State, 831 S.W.2d 387, 399 (Tex. App.—Amarillo 1992, no pet.).

      The first step is to ascertain what type of witness was involved. Loven,

831 S.W.2d at 399. If the witness was one who had no connection with either

the State’s case-in-chief or the defendant’s case-in-chief and who, because of

lack of personal knowledge regarding the offense was not likely to be called as

a witness, no abuse of discretion can be shown. Guerra, 771 SW.2d at 476;

Loven, 831 S.W.2d at 399. On the other hand, if the witness was one who

had personal knowledge of the offense and who the party clearly anticipated




                                        5
calling to the stand, then the appellate court should then turn to the second

step of the analysis. Guerra, 771 S.W.2d at 476.

      Under the second step, an appellate court must determine whether the

defendant was harmed. Bell, 938 S.W.2d at 50. Harm is established when (1)

the witness actually conferred with or heard testimony of other witnesses, and

(2) the witness’s testimony contradicted testimony of a witness from the

opposing side or corroborated testimony of a witness he had conferred with or

heard.    Id. (citing W ebb v. State, 766 S.W.2d 236, 240 (Tex. Crim. App.

1989)).

      At trial, McClure testified that on December 12, 2005, he was high on

drugs when he gave a written statement to Detective Mike Carroll of the Fort

Worth Police Department implicating Young and appellant in Earl’s murder. He

said that he did not remember giving the statement despite it being in his

handwriting.    McClure further stated that he did not remember having a

conversation with Young about the murder. Additionally, McClure testified that

he did not recall meeting with the prosecution about the case while he was in

the Tarrant County Jail because he was still on crack and ecstasy, despite

being in jail for six weeks.

      Wells testified as a rebuttal witness for the State only as to what

transpired during McClure’s meeting with the prosecutors. Wells testified that

                                      6
on June 5, 2007, he transported McClure from the Tarrant County Jail to a

conference room in the District Attorney’s Office to meet with the prosecutors

in this case. Wells was present during the meeting. Wells said that during the

meeting, McClure did not appear high, drunk, or intoxicated. Wells stated that

McClure read over a statement that he had previously given to the Fort Worth

Police Department and made a few corrections on the statement. McClure,

however, never said that his statement was a lie.

      Wells did not have personal knowledge of the offense. And the record

shows that the State did not intend to call Wells as a witness until after

McClure testified that he was high when he met with the District Attorney’s

Office.   At that time, the State found it necessary to call Wells to rebut

McClure’s testimony. Additionally, we determine that Wells was not connected

with either the State’s case-in-chief or appellant’s case-in-chief. See Loven,

831 S.W.2d at 399.

      Appellant cites to Coots v. State to support his contention that the trial

court abused its discretion. 826 S.W.2d 955 (Tex. App.—Houston [1st Dist.]

1992, no pet.). In Coots, the court of appeals held that the trial court abused

its discretion by allowing a bailiff to testify as a rebuttal witness for the

prosecution. Id. at 960–61. The prosecution argued that the trial court did not

have to exclude the bailiff from the courtroom because it did not plan on calling

                                       7
the bailiff as a witness until after the defense presented evidence that a

electronic monitoring bracelet could only be removed by cutting it. Id. at 960.

However, the court of appeals determined that the bailiff should have been

excluded because the prosecutor was aware that the defense was going to rely

on the electronic monitoring bracelet to prove his alibi. Id. at 960–61.

         Here, unlike in Coots, the State was not made aware that it was going

to call Wells to testify until after McClure’s testimony claiming that he was high

and that he did not remember even making the statement.             Additionally,

McClure and Wells were both witnesses for the State.              Coots is thus

distinguishable from the present case. Accordingly, we hold that the trial court

did not abuse its discretion by allowing Wells to testify because the record

demonstrates that Wells had no connection with either party’s case-in-chief and

had no personal knowledge of the offense. 6 Thus, we overrule appellant’s first

point.

                             IV. Factual Sufficiency

         In his second point, appellant asserts that the evidence is factually

insufficient to support his conviction for felon in possession of a firearm.




         6
       … Because we determine that Wells did not have personal knowledge of
the offense, we need not determine whether appellant was harmed under the
second step of the analysis.

                                        8
                             A. Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

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the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal.   Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Moreover, an opinion reversing and remanding on factual insufficiency grounds

must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

                                  B. Analysis

      To prove unlawful possession of a firearm by a felon, the State must

establish that the accused was previously convicted of a felony offense and

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

release from confinement or from supervision under community supervision,

parole, or mandatory supervision, whichever date is later. T EX. P ENAL C ODE A NN.

§ 46.04(a) (Vernon Supp. 2008).         Possession is defined as “actual care,

custody, control, or management.” Id. § 1.07(a)(39) (Vernon Supp. 2008). A

“firearm” is “any device designed, made, or adapted to expel a projectile

through a barrel by using the energy generated by an explosion or burning

substance or any device readily convertible to that use.”         Id. § 46.01(3)

(Vernon Supp. 2008).

      Here, Choice was the only witness to testify that appellant had a

handgun. She testified that on December 4, 2005, after she was awakened by

appellant at her mother’s house, appellant accused her, Jackson, and Dwayne

of taking $35,000 from his apartment. Choice stated that appellant pointed a

gun at her and that she thought that appellant wanted to kill her. She stated

that it was a chrome handgun, although she could not tell if it was a revolver

or an automatic. Choice testified that the handgun was either a 9mm or .45.

She further stated that appellant made her call Jackson and ask him to come

over to her mother’s house because appellant stated that he “wanted to shoot

[Jackson] in the head.”




                                        11
      Appellant argues that the evidence is factually insufficient to show that

he was in possession of a firearm because neither Choice nor any other witness

testified that appellant actually possessed a firearm. He argues that Choice’s

testimony proves that appellant possessed something that resembled a firearm,

but does not show that he actually possessed a firearm.

      However, Choice did testify that appellant had a handgun. She stated

several times that appellant had a “gun in his hand.” The fact that Choice

could not identify the caliber or whether the handgun was an automatic or

revolver is immaterial. Choice stated that appellant had a chrome handgun and

that he was pointing it at her. See Wright v. State, 591 S.W.2d 458, 459

(Tex. Crim. App. 1979) (holding that terms “gun,” “pistol,” or “revolver” are

sufficient to authorize jury to find deadly weapon used); Privett v. State, 635

S.W .2d 746, 752 (Tex. App.—Houston [1st Dist.] 1982, pet. ref’d)

(determining that victim’s statement that defendant possessed a “gun” or

“pistol” was sufficient to show use of firearm).

      Deferring, as we must, to the jury’s resolution of contradictory testimony

and evaluation of credibility and demeanor, we cannot say that the evidence is

so weak that the verdict is clearly wrong and manifestly unjust nor that the

conflicting evidence so greatly outweighs the evidence supporting the verdict




                                      12
that the jury’s determination is manifestly unjust. See Johnson, 23 S.W.3d at

8. Accordingly, we overrule appellant’s second point.

                               V. Conclusion

      Having overruled appellant’s two points, we affirm the trial court’s

judgment.




                                          PER CURIAM




PANEL: LIVINGSTON, DAUPHINOT, AND MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 21, 2008




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