

Opinion issued January 5, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00820-CR
———————————
Damion Demond Russel, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 228th District Court
Harris County, Texas

Trial Court Case No. 1199937
 

 
O P I N I O N
          A
jury convicted appellant, Damion Demond Russel, of the third degree felony
offense of unauthorized possession of a firearm by a felon.[1]  After appellant pleaded true to the
allegations in two enhancement paragraphs, the trial court assessed punishment
at twenty-five years’ confinement.  In
one issue, appellant contends that the State failed to present sufficient evidence
of his prior felony conviction because the trial court instructed the jury, orally
and in the written charge, that it should consider the evidence of his prior
felony conviction for jurisdictional purposes only and not for the purpose of
guilt.
          We
affirm.
Background
          On December
30, 2008, Houston Police Department (“HPD”) Officer D. Gatson was dispatched to
an address in east Houston on a service call involving a weapon.[2]  Officer Gatson arrived at the location and
encountered appellant, who informed Gatson that he lived there.  According to Officer Gatson, appellant told
him that the gun involved in the incident was located inside of an old clothes
dryer sitting against the outside of the house and that he had placed the gun
in the dryer earlier in the evening.  When
Officer Gatson checked the dryer, he found the gun.  Appellant informed Officer Gatson that the gun
had been involved in “an incident,” and he admitted that he was the owner of
the gun.  Officer Gatson testified that
appellant showed him various locations around the house, including the set of
drawers in appellant’s bedroom where the gun had originally been kept.  When the State asked whether appellant had ever
told him that the gun belonged to someone else, Officer Gatson responded, “Only
person he said the gun belonged to was him.”
          HPD
Officer J. Oliphant testified that he also walked through the house with
appellant, and when he asked appellant where the gun had been located,
appellant replied that it had been located in the top drawer of a plastic dresser
in a bedroom.  Appellant told Officer
Oliphant that he purchased the gun after Hurricane Ike because he was afraid of
being robbed, and he said that he placed the gun in a clothes dryer outside of
the house earlier in the evening.  Officer
Oliphant testified that appellant also told him that, after the incident, he
removed a fired cartridge from the gun and threw it into the street.
          Approximately
two weeks after the incident, HPD Officer J. Nguyen spoke with appellant about
the gun involved.  Appellant told Officer
Nguyen that he had purchased the gun “for protection.”  Appellant also told Officer Nguyen that, on
the night of the incident, he discovered that the gun was in his bedroom,
became angry, and “threw [the gun] in the back of the nonfunctional dryer, in
the back of the house.”  After Officer
Nguyen spoke with appellant, he checked appellant’s criminal history and
discovered a December 2008 felony conviction for possession of a controlled
substance.  Defense counsel did not
object to Officer Nguyen’s testimony regarding appellant’s prior felony conviction,
and he did not request that the trial court give an instruction limiting the
jury’s consideration of this testimony in any way.
Harris County Sheriff’s Department
Deputy D. Rossi, a fingerprint identification expert, compared appellant’s
fingerprints to the fingerprints on a booking card and a judgment and sentence,
both for a December 2008 felony conviction for possession of a controlled
substance, and concluded that the fingerprints matched.  The trial court admitted into evidence,
without objection, the booking card and the judgment and sentence for this
prior conviction.  Defense counsel did
not object to Deputy Rossi’s testimony regarding appellant’s prior felony conviction,
nor did he request a limiting instruction at the time of Rossi’s testimony.
After the State rested, defense
counsel requested the following jury instruction:
I would ask the Court to
give an instruction now to the jury that the evidence of the prior conviction
is for jurisdictional purposes only and may not be considered by them for any
other purpose.
 
In response, the trial court instructed the jury as
follows:
Jury, that is the
instruction the Court would give.  The
stipulation of the prior jurisdiction, prior criminal conviction is for the
purpose of giving the Court jurisdiction to hear the matter and is not to be
considered for any other purpose than that.
 
After the trial court gave this instruction, defense
counsel, when questioning appellant’s mother during his case-in-chief,
referenced appellant’s prior felony conviction.
          During
the charge conference, the parties discussed the inclusion of a similar
instruction in the charge, and defense counsel advised the trial court on the
appropriate wording of such an instruction. 
The trial court included the following instruction in the written
charge:
You are instructed that
certain evidence was admitted before you in regard to the defendant’s having
been convicted of an offense other than the one for which he is now on
trial.  Such evidence cannot be
considered by you against the defendant as any evidence of guilt in this
case.  Said evidence was admitted before
you for the purpose of establishing jurisdiction and for no other purpose, and
you will not consider the same for any other purpose.
 
The jury convicted appellant of the offense of unauthorized
possession of a firearm by a felon. 
After appellant pleaded true to the allegations in two enhancement
paragraphs, the trial court assessed punishment at twenty-five years’
confinement.  This appeal followed.
Sufficiency of the Evidence
          In
his sole issue, appellant contends that the State failed to present sufficient
evidence that he had a prior felony conviction, an essential element of the charged
offense, because the trial court instructed the jury, both orally and in the
written charge, that it was to consider the previously-admitted evidence
regarding appellant’s prior conviction solely for the purpose of establishing
jurisdiction and not as evidence of guilt.
A.  
Standard of Review
When reviewing the sufficiency of
the evidence, we view the evidence in the light most favorable to the verdict
to determine whether any rational fact finder 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); Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010).  The jurors are
the exclusive judges of the facts, the credibility of the witnesses, and the
weight to be given to the testimony.  Brooks, 323 S.W.3d at 899; Bartlett v. State, 270 S.W.3d 147, 150
(Tex. Crim. App. 2008).  A jury may
accept one version of the facts and reject another, and it may reject any part
of a witness’s testimony.  See Margraves v. State, 34 S.W.3d 912,
919 (Tex. Crim. App. 2000), overruled on
other grounds, Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009); see
also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d) (holding jury can choose to disbelieve witness even when
witness’s testimony is uncontradicted). 
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder.  Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  We afford almost complete deference to the
jury’s determinations of credibility.  See Lancon v. State, 253 S.W.3d 699, 705
(Tex. Crim. App. 2008).  We resolve any
inconsistencies in the evidence in favor of the verdict.  Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination.”).
We conduct a constitutional evidentiary-sufficiency
review “by measuring the evidentiary sufficiency with ‘explicit reference to
the substantive elements of the criminal offense as defined by state
law.’”  Adames v. State, No. PD-1126-10, 2011 WL 4577870, at *4 (Tex. Crim.
App. Oct. 5, 2011) (quoting Jackson,
443 U.S. at 324 n.16, 99 S. Ct. at 2792 n.16). 
We measure the sufficiency of the evidence “by the elements of the
offense as defined by the hypothetically correct jury charge for the case.”  Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011)
(holding same).  Such a charge is one
that “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” 
Byrd, 336 S.W.3d at 246
(quoting Malik, 953 S.W.2d at
240).  Therefore, we apply the Jackson v. Virginia standard of sufficiency
review to the hypothetically correct jury charge.  Id.;
see also Adames, 2011 WL 4577870, at
*5 (“Malik and its
progeny . . . made clear that an appellate court does apply
the Jackson standard of review to the
hypothetically correct jury charge.”). 
This standard “ensures that a judgment of acquittal is reserved for
those situations in which there is an
actual failure in the State’s proof of the crime rather than a mere error
in the jury charge submitted.”  Malik, 953 S.W.2d at 240 (emphasis added).
B.  
Unauthorized Possession of a Firearm
by a Felon
A person commits the offense of
unauthorized possession of a firearm by a felon if the person has previously
been convicted of a felony offense and possesses a firearm after the conviction
and before the fifth anniversary of the person’s release from confinement,
community supervision, parole, or mandatory supervision following the prior
felony conviction.  See Tex. Penal Code Ann.
§ 46.04(a)(1) (Vernon 2011); James
v. State, 264 S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d).  On appeal, appellant does not
challenge the evidence supporting the “possession” element of this offense;
rather, he argues that, as a result of the trial court’s instructions, the
State presented no evidence to support the “prior felony conviction” element of
the offense.
The defendant’s prior felony
conviction is an essential, substantive element of the offense of unauthorized
possession of a firearm by a felon that the State must prove to obtain a
conviction.  See James, 264 S.W.3d at 218; Hawkins
v. State, 89 S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d) (listing prior felony conviction as essential for State to establish
unlawful possession of firearm by felon). 
Appellant cites no case law, and we have found none, approving of
instructions similar to those that the trial court gave here:  that the jury should consider the admitted
evidence concerning appellant’s prior felony conviction for jurisdictional
purposes only and not as evidence of guilt.[3]  Thus, the hypothetically correct jury charge
for the offense of unauthorized possession of a firearm by a felon requires the
jury to find that the defendant had been previously convicted of a felony, and
this charge does not include an instruction limiting the jury’s consideration
of the prior felony conviction evidence to jurisdictional purposes instead of
evidence of the defendant’s guilt.  See Malik, 953 S.W.2d at 240 (noting
that hypothetically correct jury charge is one that “accurately sets out the law”).
Here, the indictment alleged that
appellant,
[O]n or about DECEMBER 30,
2008, did then and there unlawfully, intentionally and knowingly possess a
firearm after [having] been convicted of the felony offense of POSSESSION OF A
CONTROLLED SUBSTANCE, in the District Court for the 209TH Judicial District,
HARRIS County, Texas, in Cause Number 1193213 on DECEMBER 1, 2008, and said
possession of the firearm occurred before the fifth anniversary of the
Defendant’s release from CONFINEMENT RESULTING FROM SAID CONVICTION on DECEMBER
21, 2008.
 
During the State’s case-in-chief,
Officer Nguyen testified that he ran a criminal background check after he spoke
with appellant following the shooting incident and discovered that he had a
prior felony conviction for possession of a controlled substance from December
2008.  Deputy Rossi compared appellant’s
fingerprints to the fingerprints on a booking card and a judgment and sentence
for a December 2008 felony conviction of possession of a controlled substance
and concluded that the fingerprints matched. 
Defense counsel did not object to this testimony or immediately request
a limiting instruction regarding this testimony, and the trial court admitted
the booking card and the judgment and sentence without objection.  See
Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007) (“Once
evidence has been admitted without a limiting instruction, it is part of the
general evidence and may be used for all purposes.”); Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001)
(“Allowing the jury to consider evidence for all purposes and then telling them
to consider that same evidence for a limited purpose only is asking a jury to
do the impossible.  If a limiting
instruction is to be given, it must be when the evidence is admitted to be
effective.”).
When we measure the evidence
presented against the hypothetically correct jury charge and when we view the
evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found beyond a reasonable doubt that appellant
unlawfully possessed a firearm within five years of his release from
confinement for a previous felony conviction. 
See Malik, 953 S.W.2d at 240
(noting that applying Jackson sufficiency
standard to hypothetically correct jury charge “ensures that a judgment of
acquittal is reserved for those situations in which there is an actual failure
in the State’s proof of the crime rather than a mere error in the jury charge
submitted”).  We therefore hold that the
State presented sufficient evidence that appellant had a prior felony
conviction.
We
further note that the doctrine of invited error provides that a party cannot
take advantage of an error that he invited or caused, even if such error is
fundamental.  Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011)
(citing Prystash v. State, 3 S.W.3d
522, 531 (Tex. Crim. App. 1999)); Wynn v.
State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“It
is a well-settled principle of law that a criminal defendant cannot invite
error and then complain of it on appeal.”). 
“A party is estopped from seeking appellate relief based on error that
it induced.”  Woodall, 336 S.W.3d at 644; see
also Prystash, 3 S.W.3d at 531 (“[T]he law of invited error estops a party
from making an appellate error of an action it induced.”).  Holding otherwise permits the party to “take
advantage of his own wrong.”  Woodall, 336 S.W.3d at 644; see also Prystash, 3 S.W.3d at 531
(“Where a party by a request for a ruling leads the court into error, he should
be precluded from claiming a reversal of the judgment by reason of the error so
committed.  To hold otherwise would be to
permit him to take advantage of his own wrong.”).
Here, appellant requested the oral instruction to
the jury and advised the trial court on the proper wording of a similar
instruction for the written charge. 
Although appellant does not complain on appeal that these instructions
were erroneous, he does complain that these instructions “negated” the State’s
proof of his prior felony conviction and rendered the evidence supporting that
element of the offense insufficient. 
Because appellant himself requested the instructions that, he contends,
caused the alleged insufficiency of the evidence, he cannot take advantage of
the trial court’s error in giving these instructions.  See
Woodall, 336 S.W.3d at 644; Prystash,
3 S.W.3d at 531.
We overrule appellant’s sole issue.


 
Conclusion
          We
affirm the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Massengale.
Publish.
 Tex.
R. App. P. 47.2(b).
 




[1]
          See Tex. Penal Code Ann.
§ 46.04(a)(1) (Vernon 2011).


[2]
          Two teenage boys had found a gun
in a dresser drawer, and one of the boys was seriously injured after the gun
discharged.  The parties agreed to keep
the facts surrounding the shooting incident from the jury, and, instead, they
stipulated that the firearm involved was in working condition.


[3]
          Moreover, limiting instructions should be
given in the guilt-stage charge only if the defendant requested the limiting
instruction at the time the evidence was first admitted.  See
Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007) (holding that
limiting instruction involving use of extraneous offense evidence should not be
included in charge unless defendant requested such instruction at time evidence
was admitted).  It is undisputed that
appellant did not request the limiting instruction regarding the evidence
concerning his prior felony conviction until after the State had rested.  At the time defense counsel made this
request, Officer Nguyen and Deputy Rossi had already testified, without
objection or request for a limiting instruction, regarding appellant’s prior
felony conviction.


