Opinion issued July 16, 2015




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-14-00857-CR
                           ———————————
                   JESSE DIMAS ALVARADO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1410607


                         MEMORANDUM OPINION

      Appellant, Jesse Dimas Alvarado, was found guilty by a jury of the offense

of unlawful possession of a firearm by a felon.1        The trial court assessed

Appellant’s punishment at five years in prison. In two issues on appeal, Appellant

1
      See TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon 2011).
asserts that the evidence was insufficient to support the judgment of conviction and

that he received ineffective assistance of counsel at trial.

      We affirm.

                                     Background

      Appellant was convicted of the offense of sexual assault of a child on

August 12, 2003. He was sentenced to eight years in prison. Appellant was

released from prison on July 1, 2011.

      On December 5, 2013, several law enforcement agencies, working together,

executed a search warrant on Appellant’s family home as part of a child

pornography investigation.2      The target of the investigation was Appellant’s

brother, Alfred. Appellant, Alfred, and their mother were at home when the

warrant was executed. Appellant was asleep in a bedroom.

      During the search of the home, Houston Police Officer D. Nieto found a

firearm, a 9 millimeter pistol, on the shelf of the closet in the bedroom where

Appellant had been sleeping. The gun was in a nylon holster with the butt of the

gun facing outward. Men’s clothing was hanging in the closet. When the officer

asked whose bedroom it was, Appellant responded that it was his room.

Appellant’s wallet containing his driver’s license and his Texas Department of

Criminal Justice offender card was found in the bedroom. Drug paraphernalia—


2
      The jury in this case was not informed of the purpose of the search warrant.
                                           2
including various scales and different size plastic baggies of the type used to

package narcotics—was also recovered from the bedroom.

          The police searched a car belonging to Appellant’s other brother, Rudy.

Inside the car, they found a large quantity of illegal drugs. Rudy was not at the

scene, but he was later arrested and convicted for illegal drug possession.

          Appellant was arrested and later charged with the offense of unlawful

possession of a firearm by a felon. At trial, Officer Nieto testified that he was the

police officer who found the pistol on a shelf of the bedroom closet. He testified

that the pistol was not hidden or obstructed by anything on the shelf. He stated

anyone who entered the closet and looked up would have seen the butt of the

pistol.

          R. Ackley, an investigator with the Harris County Sherriff’s Office, also

participated in the search of the home. Investigator Ackley testified that he saw the

pistol on the shelf of the bedroom closet. He stated that the shelf was at eye level,

about five feet high. He testified that the pistol was clearly visible on the shelf. He

stated that the pistol was in a holster, with the handle of the gun facing out and the

barrel of the gun pointing into the closet. He testified that the pistol was stuffed

between two shopping bags but the handle was sticking out far enough that he

could tell that it was a gun.




                                          3
      Photographs of the closet and of the shelf with the pistol were also admitted

into evidence. In the photographs, the pistol was laying on the shelf with nothing

around it. On cross-examination, Officer Nieto acknowledged that pistol had been

taken off the shelf and cleared of ammunition, replaced on the shelf and then

photographed. He did not agree that, when he initially found the pistol, it had been

stuffed between two shopping bags as Investigator Ackley had testified.

      Appellant’s brother, Alfred, and Appellant’s mother testified for the defense.

Alfred stated that he had purchased the pistol about six months before the search

for home protection. Alfred explained that the bedroom where the pistol was

found had previously been his bedroom. Appellant moved into the bedroom where

the pistol was found approximately six months before the search, and Alfred had

moved to another bedroom.

      Appellant’s mother, Juanita, testified that the items on the shelf where the

pistol was found belonged to her; however, the clothes hanging in the closet

belonged to Appellant. Juanita stated that she did not know that the pistol was in

the closet.

      In closing argument, the defense asserted that the State’s photographs,

showing the pistol laying in plain view on the shelf did not accurately reflect where

the pistol had been in the closet when it was found by Officer Nieto. The defense

pointed to the testimony of Investigator Ackley indicating that the pistol had been


                                         4
stuffed between two shopping bags. The defense relied on Alfred’s testimony

indicating that he had purchased the pistol and placed it in the closet.

      In its closing argument, the State pointed out that both Officer Nieto and

Investigator Ackley testified that the pistol was in plain view in the closet. The

State also pointed out that, under the law, the jury did not need to find that

Appellant owned the pistol in order to find that he possessed it.

      The jury found Appellant guilty of the offense of unlawful possession of a

firearm by a felon. Appellant elected to have the trial court assess punishment. At

the punishment hearing, the State reoffered the evidence from the guilt-innocence

phase, which was admitted for punishment purposes. The defense requested that

Appellant receive the minimum prison sentence of two years, and the State

requested that the trial court assess a six-year sentence. At the conclusion of the

hearing, the court sentenced Appellant to five years in prison. Appellant did not

file a motion for new trial.

      Appellant now appeals, raising two issues.

                               Sufficiency of the Evidence

      In his first issue, Appellant asserts that the evidence was insufficient to

support his conviction for the offense of unlawful possession of a firearm by a

felon. Specifically, Appellant claims that “the evidence does not affirmatively link

the pistol in question to appellant.”


                                            5
A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under the single

sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App.

2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Pursuant to

the Jackson standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict, no

rational fact finder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and


                                         6
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In our review of the record, 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. Clayton, 235 S.W.3d at 778. Finally, “[e]ach 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 v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Elements of the Offense and Pertinent Legal Principles

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

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

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

person’s release from confinement. TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon

2011). Appellant does not dispute that he had a prior felony conviction or that it

has been less than five years since his release from prison; rather, he challenges

only the sufficiency of the evidence to prove that he possessed a firearm.


                                          7
      The Penal Code defines possession as “actual care, custody, control, or

management.”     Id. § 1.07(a)(39) (Vernon Supp. 2014).        A person commits a

possession offense only if he voluntarily possesses the prohibited item.          Id.

§ 6.01(a) (Vernon 2011).     Possession is voluntary 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. Id. § 6.01(b).

      We analyze cases involving possession of a firearm by a felon under the

sufficiency-of-the-evidence rules adopted for cases involving possession of a

controlled substance. See Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d). In such cases, the State is required to prove that a

defendant knew of the firearm’s existence and that he exercised actual care,

custody, control, or management over it. See id. at 38; see also TEX. PENAL CODE

ANN. § 1.07(a)(39). 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. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.

2005).

      Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex.

App.—Houston [1st Dist.] 2012, pet. ref’d) (citing McGoldrick v. State, 682

S.W.2d 573, 578 (Tex. Crim. App. 1985)). When the accused is not in exclusive


                                          8
possession of the place where the firearm is found, then additional, independent

facts and circumstances must affirmatively link the defendant to the firearm in

such a way that it can reasonably be concluded that the defendant had knowledge

of the contraband and exercised control over it. See Kibble v. State, 340 S.W.3d

14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Roberts v. State, 321

S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).               The

evidence, whether direct or circumstantial, must establish, to the requisite level of

confidence, that the accused’s connection with the firearm was more than just

fortuitous. See Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911

S.W.2d 744, 747 (Tex. Crim. App. 1995)).

      A nonexclusive list of factors that may establish a link between a defendant

and a firearm found inside a house, which was not in the defendant’s exclusive

control, includes whether (1) the defendant was present at the time of the search;

(2) the defendant was the owner of or had the right to control the location where

the firearm was found; (3) the firearm was in plain view; (4) the defendant was in

close proximity to and had access to the firearm; (5) firearms or other contraband

was found on the defendant; (6) the defendant attempted to flee; (7) conduct by the

defendant indicated a consciousness of guilt, including extreme nervousness or

furtive gestures; (8) the defendant had a special connection or relationship to the

firearm; (9) the place where the firearm was found was enclosed; and (10)


                                         9
affirmative statements connected the defendant to the firearm, including

incriminating statements made by the defendant when arrested. Jones v. State, 338

S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854

(Tex. Crim. App. 2012).

      When deciding whether the evidence is sufficient to link a defendant to a

firearm, the fact finder is the exclusive judge of the credibility of the witnesses and

of the weight to be given to their testimony. See Poindexter, 153 S.W.3d at 406.

The jury is allowed to infer the defendant’s knowledge from his acts, conduct,

remarks, and from the surrounding circumstances.          See Krause v. State, 243

S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

      No formula of facts exists to dictate a finding of links sufficient to support

an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 831

(Tex. App.—Dallas 2003, no pet.).        The link between the defendant and the

firearm need not be so strong that it excludes every other outstanding reasonable

hypothesis except the defendant’s guilt. See Brown v. State, 911 S.W.2d 744, 747

(Tex. Crim. App. 1995). In sum, it is the logical force of the evidence, and not the

number of links, that supports a fact finder’s verdict. Evans v. State, 202 S.W.3d

158, 166 (Tex. Crim. App. 2006).




                                          10
C.    Analysis

      To support his challenge that insufficient evidence was presented to link him

to the recovered handgun, Appellant points to evidence that it was his brother,

Alfred, who had purchased the pistol for home protection, and it was Alfred who

had placed the pistol in the closet when it had been Alfred’s bedroom. Appellant

also points out that a number of people lived in the house. However, the State was

not required to show that Appellant owned the pistol or that he exercised sole

control over it. See Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005,

pet. ref’d) (holding State is not required to prove defendant had exclusive

possession of firearm).

      Appellant also asserts that the pistol was not in plain view. He claims that

he would only have seen it if he opened the closet door and looked at the pistol.

He points out that Investigator Ackley testified that the pistol was stuffed between

two bags on the shelf. Appellant further avers that the State presented no evidence

regarding a number of the link factors. He asserts he made no incriminating

statements or furtive gestures; he also did not attempt to flee.

      Generally, Appellant correctly cites the record. However, the absence of

various affirmative links does not constitute evidence of innocence to be weighed

against the affirmative links that are present. James v. State, 264 S.W.3d 215, 219

(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Appellant’s analysis does not


                                          11
appropriately view the evidence in the light most favorable to the verdict and

improperly discounts evidence linking him to the pistol recovered from the closet.

A factor that is of little or no value in one case may be the turning point in another.

See Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no

pet.).

         The State offered evidence linking Appellant to the firearm. Appellant was

asleep in the bedroom where the closet was located when the search began.

Appellant told the police that it was his bedroom. His wallet, driver’s license, and

offender’s registration card were found in the bedroom. Alfred testified that it had

been Appellant’s bedroom for six months.          Alfred also testified that he had

purchased the pistol about six months before the search.

         The evidence further showed that it was Appellant’s clothes hanging in the

closet. Officer Nieto and Investigator Ackley testified that the pistol was in plain

view on the shelf. Although he stated that the pistol was stuffed between two bags,

Investigator Ackley testified that the pistol was visible, and it was identifiable as a

gun. Investigator Ackley also testified that the shelf was eye level, being about

five feet from the floor.

         The circumstantial evidence outlined above, when viewed in combination,

constitutes sufficient evidence connecting Appellant to the firearm, not merely

fortuitous proximity. See Poindexter, 153 S.W.3d at 405–06. Although Appellant


                                          12
cites link factors on which the State presented no evidence, as well as evidence that

weighs in his favor, “[i]t is the logical force of the circumstantial evidence, not the

number of links, that supports a jury’s verdict.” See Evans, 202 S.W.3d at 166.

      Viewing the evidence in a light most favorable to the verdict, we conclude

that a rational fact finder could have found beyond a reasonable doubt that

Appellant possessed the firearm; that is, that he knew of the pistol’s existence and

exercised care, custody, control, or management over it.3 See Jackson, 443 U.S. at


3
      As part of his sufficiency challenge, Appellant asserts that, even if the evidence
      was sufficient to link him to the firearm, he should nonetheless be acquitted
      because, under the narrow circumstances of this case, he had a state and a federal
      constitutional right to bear arms. See U.S. CONST. amend. II (“A well regulated
      Militia, being necessary to the security of a free State, the right of the people to
      keep and bear Arms, shall not be infringed.”); TEX. CONST. art. I, § 23 (“Every
      citizen shall have the right to keep and bear arms in the lawful defence of himself
      or the State; but the Legislature shall have power, by law, to regulate the wearing
      of arms, with a view to prevent crime.”). Appellant points out that the evidence
      showed that his home was in a high crime area, and it had been the target of
      criminal activity in the past. Appellant claims that, under these circumstances, he
      had a constitutional right to possess a firearm to defend his home, despite his
      status as a felon. Appellant asserts that to hold the evidence sufficient to support
      his conviction would violate his state and federal rights to bear arms. Although
      woven into his sufficiency-of-the evidence challenge, Appellant’s complaint is an
      as-applied constitutional challenge to Penal Code section 46.04. See Adams v.
      State, 222 S.W.3d 37, 53 (Tex. App.—Austin 2005, pet. ref’d) (“Under an ‘as
      applied’ challenge, the challenging party contends that the statute, although
      generally constitutional, operates unconstitutionally as to him or her because of the
      challenging party’s particular circumstances . . . .”). Appellant did not raise his
      constitutionality challenges in the trial court. Thus, it has not been preserved for
      review in this Court. See Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim.
      App. 2008) (noting the “well-established requirement that appellant must preserve
      an ‘as applied’ constitutional challenge by raising it at trial”); see also Karenev v.
      State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that facial challenge
      to constitutionality of statute is forfeitable right that is waived if defendant fails to
      raise it in trial court).
                                             13
319, 99 S. Ct. at 2789; Jones, 338 S.W.3d at 743. We hold that the evidence is

sufficient to support the judgment of conviction for the offense of unlawful

possession of a firearm by a felon.

       We overrule Appellant’s first issue.

                            Ineffective Assistance of Counsel

       In his second issue, Appellant asserts that he received ineffective assistance

of counsel at trial.

A.     Applicable Legal Principles

       To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,

the result would have been different. See Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d

98, 101 (Tex. Crim. App. 2005). The first Strickland prong requires an appellant

to overcome the strong presumption that counsel’s performance falls within a wide

range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The

second Strickland prong requires an appellant to show that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.        See id. at 102.   A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome. See id.


                                            14
      An appellant has the burden to establish both prongs by a preponderance of

the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

A failure to show either (1) deficient performance or (2) sufficient prejudice

defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009); Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d).

B.    Analysis

      Appellant asserts that defense counsel’s performance at trial was deficient

because counsel did not object to police and prison records contained in State’s

Exhibit 4, business records from the Texas Department of Criminal Justice, and in

State’s Exhibits 27 and 27A, Appellant’s pen packets. The State offered these

documents into evidence to prove Appellant’s prior felony conviction for sexual

assault and to show Appellant’s release date from prison, both relevant to proving

elements of the instant offense of unlawful possession of a firearm by a felon.

Appellant complains that counsel should have objected to the portions of these

exhibits revealing the following: (1) disturbing allegations related to the sexual-

assault count for which Appellant was convicted; (2) details of a second count of

sexual-assault that was abandoned by the State; (3) misconduct by Appellant while

he was in prison; (4) the fact that Appellant is a registered sex offender; (5)




                                         15
notations indicating that Appellant had been arrested seven times for other offenses

and had used illegal drugs.

      Normally, counsel is afforded an opportunity to explain his actions before

being condemned as unprofessional or incompetent, such as with a hearing on a

motion for new trial or with the filing of an affidavit. See Bone v. State, 77 S.W.3d

828, 836 (Tex. Crim. App. 2002); Anderson v. State, 193 S.W.3d 34, 39 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). Here, Appellant did not file a motion

for new trial, and the record is otherwise devoid of any explanation regarding

counsel’s reasons or strategy for not objecting to the complained-of exhibits.

Appellant asserts that there could be “no imaginable trial strategy” to justify the

lack of objection. We disagree.

      The allegedly objectionable information was not contained in testimony

heard by the jury; rather, it was contained in documentary evidence, part of which

was admissible to prove elements of the instant offense. It is possible that trial

counsel strategically choose not to object to the complained-of portions to avoid

drawing the jury’s attention to the information. See Bollinger v. State, 224 S.W.3d

768, 781 (Tex. App.—Eastland 2007, pet. ref’d) (observing that counsel may

choose not to object to evidence because “an objection might draw unwanted

attention to a particular issue”); Cooper v. State, 788 S.W.2d 612, 618 (Tex.

App.—Houston [1st Dist.] 1990, pet. ref’d) (overruling ineffective-assistance issue


                                         16
when objection to allegedly inadmissible testimony would have likely focused

jury’s attention on fact that was unfavorable to defendant).

      In any event, the record is silent regarding trial counsel’s strategy and his

reasons for not objecting to this evidence. Appellant has failed to overcome the

presumption that trial counsel’s actions were sound trial strategy. See Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see also Warren v. State, 377

S.W.3d 9, 20 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (stating appellate

court, in absence of evidence of evidence of counsel’s reasons, will assume

strategic motivation for counsel’s failure to object). We conclude Appellant has

not shown counsel’s performance fell below an objective standard of

reasonableness. See State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App.

2008); Bone, 11 S.W.3d at 834.

      Moreover, Appellant has not established the second Strickland prong.

Appellant does not point to any place in the record where the State referenced or

otherwise highlighted the complained-of evidence. The primary issue at the guilt-

innocence stage was whether Appellant possessed the pistol. That was the focus of

the State’s evidence and its argument.

      The State did reoffer all of its evidence at the punishment phase of trial;

however, it did not specifically mention the complained-of evidence during the




                                         17
punishment phase. Rather, the State pointed to the evidence showing what had

been discovered during the search of Appellant’s family home.

      In its closing statement, the State acknowledged that Appellant should not

receive the maximum ten-year sentence by requesting the trial court to assess a six-

year sentence. The defense requested the minimum two-year sentence, pointing

out that the instant offense involved no victim or property damage. The trial court

assessed Appellant’s punishment to be five years in prison.

      We conclude that Appellant has not demonstrated a reasonable probability

that the result of the proceedings would have been different but for counsel’s

failure to object. We hold that appellant has failed to show, by a preponderance of

the evidence, that he received ineffective assistance of counsel at trial.      See

Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068.

      We overrule Appellant’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                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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