### NUMBER 12-15-00007-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS CHRISTOPHER EARL THURMAN, Appellant

v. 

### THE STATE OF TEXAS, Appellee From the 7th District Court of Smith County, Texas Trial Cause Numb er 007-1224-14


### STATE’S BRIEF
ORAL ARGUMENT NOT REQUESTED D. MATT BINGHAM Criminal District Attorney Smith County, Texas AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692

Smith County Courthouse, 4th Floor Tyler, Texas 75702 Phone: (903) 590-1720

Fax: (903) 590-1719 Email: arediker@smith-county.com ACCEPTED 12-15-00007-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 8/3/2015 11:04:16 AM CATHY LUSK CLERK1 T ABLE OF C ONTENTS

Index of Authorities ........

................... ............... ................... ............. ............. ........... 2

Statement of Facts ..........

................... ............... ................... ............. ............. ........... 3 Summary of Argument ........

................... ................ .................. ................... ............. 4

I.I SSUE O NE : The logical force of the evidence linking appellant to the r evolver found in his motel room was sufficient to show actual care, custody, control, or management of the firearm. .............

................... ............... ................... ................ .............. .......... 5 Standard of Review .........

................... ................ ............... ................ ............. ........... 5 Argument ..........

................ ................ ............ ................... ................ .............. .......... 6

II.I SSUES T WO AND T HREE : Appellant failed to preserve any error in the trial court’s alleged failure to consider the full range of punishment, and e ven if he had, deferred adjudication community supervision was unavailable to him. ....

................... ........... 10 Argument ..........

................ ................ ............ ................... ................ .............. ........ 10 Certificate of Compliance ..

.................. ................. .................. .................. .............. 12

Certificate of Service ......

................... ............... ................... ............. ............. ......... 132 I NDEX OF A UTHORITIES
Texas Cases Dewberry v. State , 4 S.W.3d 735 (Tex. Crim. App . 1999) ........

................. ............... 5 Evans v. State , 202 S.W.3d 158 (Tex. Crim. A pp. 2006) .....

.................. ................... 7 Hawkins v. State , 89 S.W.3d 674 (Tex. App.—Hous ton [1st Dist.] 2002, pet. ref’d ) . 6 Hernandez v. State , 538 S.W.2d 127 (Tex. Crim. A pp. 1976) ......

................. ............ 7 Hooper v. State , 214 S.W.3d 9 (Tex. Crim. App. 2007) ......................... ................... 6 James v. State , 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’ d) ... 6 Jones v. State , 338 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2011) ......... ....... 7, 9 Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009) ....................... ................... 5 Reed v. State , 644 S.W.2d 479 (Tex. Crim. A pp. 1983) ....

................... ............. ...... 11 Stout v. State , 426 S.W.3d 214 (Tex. App.—Houst on [1st Dist.] 2012, no pet.) ........ 6 Sutton v. State , 328 S.W.3d 73 (Tex. App.—Fort Worth 2010, no pet.) .......... .......... 8 Teixeira v. State , 89 S.W.3d 190 (Tex. App.—Texark ana 2002, pet. ref’d) ........ ..... 10 Villegas v. State , 871 S.W.2d 894 (Tex. App.–Hous ton [1st Dist.] 1994, pet. ref’ d) .. 9 Washington v. State , 71 S.W.3d 498 (Tex. App.—Tyle r 2002, no pet. ) ............... .... 10 Willis v. State , 192 S.W.3d 585 (Tex. App.–Tyler 2006, pet. ref’d) (mem. op.) ........ 9

Texas Statutes Tex. Code Crim. Proc. art. 42.1 2, § 5 ........

................. ................. ................... ........ 11 Tex. Penal Code Ann. § 1.07

.................. ................. ................. ................... ............. 6 Tex. Penal Code Ann. § 6.01

.................. ................. ................. ................... ............. 6

Texas Rules Tex. R. App. P. 33. 1 ............

................ .............. ............... ................ ................ ...... 10

Federal Cases Jackson v. Virginia , 443 U.S. 307 (1979 ).............

................ ............. ................ ........ 53 NUMBER 12-15-00007-CR

IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS
CHRISTOPHER EA RL THURMAN, Appellant

v. THE STATE OF TEXAS, Appellee From the 7th District Court of Smith County, Texas Trial Cause Numb er 007-1224-14


### STATE’S BRIEF

T O THE H ONORABLE C OURT OF A PPEALS : Comes now the State of Texas, by and through the undersigned As sistant Criminal District Attorney, respectfully requesting that this Court over rule appellant’s issues and affirm the judgment of the trial court in the above-captioned c ause.
S TATEMENT OF F ACTS Appellant has stated the essential nature of the proceedings a nd the evidence presented at trial (Appellant's Br. 3-5). In the interest of j udicial economy, any other4 facts not mentioned therein that may be relevant to the disposi tion of appellant's issues will be discussed in the State's arguments in response.
S UMMARY OF A RGUMENT In a bench trial for the offense of unlawful possession of a f irearm by a felon, the evidence showed the following links between appellant and the r evolver found in his motel room: appellant’s presence at the time of the search, th e firearm’s proximity and accessibility to appellant, his right to control and posses s the location where the firearm was found, the presence of other contraband, a special connection or relationship between appellant and the firearm, and that the fi rearm was found in an enclosed space within his room. Viewing the evidence in the li ght most favorable to the verdict, the logical force from these links was sufficient for a rational trier of fact to have found beyond a reasonable doubt that appellant exercise d care, custody, control, or management over the revolver. While appellant also argues t hat the trial court refused to consider the entire range of punishment, he failed t o preserve any error for review by not raising a timely objection at trial. Even if app ellant had raised a timely objection, the trial court made its finding of guilt following a bench trial on appellant’s plea of “not guilty”, and appellant was therefore ineligible to receive deferred adjudication community supervision.5 I. I SSUE O NE : The logical force of the evidence linking appellant to the revolver found in his motel room was sufficient to show actual care, custody, control, or manageme nt of the firearm. S TANDARD OF R EVIEW Articulating the standard of review for legal sufficiency in Jackson v. Virginia , 443 U.S. 307, 319 (1979), the Supreme Court stated that, "the relev ant question is whether, after viewing the evidence in the light most favorable to the p rosecution, any rational trier of fact could have found the essential elements of the cr ime beyond a reasonable doubt." When conducting a legal sufficiency review, a reviewin g court must ask whether any rational trier of fact could have found the essenti al elements of the crime beyond a reasonable doubt, and not whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The same standard applies equally to c ircumstantial and direct evidence. Id . When examining the evidence for legal sufficiency, a reviewi ng court’s role is not to become a “thirteenth juror”, and it may not “re-evaluate the weight and credibility of the record evidence” and thereby substitute its judgment for that of the jury. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Thus, “[t]he reviewing court must give deference to the responsibility of th e trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to d raw reasonable inferences6 from basic facts to ultimate facts.” Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at 318-19) (internal quotation marks omitted).

A RGUMENT In his first issue, appellant argues that the evidence linking him to the firearm discovered during a consensual search of his motel room was leg ally insufficient to support his conviction for unlawful possession of a firearm by a felon (Appellant’s Br. 7-13). “’Possession’ means actual care, custody, control, or m anagement.” Tex. Penal Code Ann. § 1.07(39) (West 2014). To constitute an offense, po ssession of the prohibited item must be voluntary: “the possessor knowingly obt ains or receives the thing possessed or is aware of his control of the thing for a s ufficient time to permit him to terminate his control.” Tex. Penal Code Ann. § 6.01(a), (b) (West 2014). Because the firearm at issue was not found on appellant or in h is exclusive possession, the State was required to prove possession by affirmatively lin king the firearm to the appellant. Stout v. State , 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “The State may establish possession by proving an ‘a ffirmative link,’ which demonstrates that the defendant was conscious of his connection with the weapon and knew what it was.” James v. State , 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citing Hawkins v. State , 89 S.W.3d 674, 677 (Tex. App.— Houston [1st Dist.] 2002, pet. ref’d). A nonexclusive list of factors that may establish7 a link between a defendant and a firearm found inside a residen ce that was not in his exclusive control includes whether: (1) the defendant was present at the time of the search; (2) th e 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 oth er contraband was found on the defendant; (6) the defendant attempted to flee ; (7) conduct by the defendant indicated a consciousness of guilt, including ext reme nervousness or furtive gestures; (8) the def endant had a special connection or relationship to the firearm; (9) the place where the firearm was found was encl osed; and (10) 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). The number of links is not dispositive, “but rather the logical force of all of the evidence, direct and cir cumstantial.” Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Furthermore, the a bsence of any of the links listed above “is not evidence of appellant's innocenc e to be weighed against evidence tending to connect appellant to the [contraband].” Hernandez v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). Here, the evidence established at least six links between appe llant and the firearm: his presence at the time of the search, the proximity and acces sibility of the firearm, appellant’s right to control the location where the weapon was found, the presence of other contraband in the motel room, a special connection or rel ationship between appellant and the firearm, and that the firearm was found in an enclosed space. See8 Jones , 338 S.W.3d at 742. Appellant was present at the time of the search at approximately eight o’clock in the evening at the Town House Mo tel in Tyler (V Rep.’s R. at 59, 62). Moments before knocking on appellant’s door, Ty ler Police officers observed Brittany Stone, a theft suspect, enter appellant’s roo m at the motel ( Id . at 60- 62). Appellant answered the door naked and told the officers t hat he had been sleeping ( Id . at 62). He stated that the room was his and gave them permis sion to enter and arrest Ms. Stone ( Id .). Appellant subsequently gave the officers consent to search his motel room ( Id . at 64, 66), and a .38 caliber revolver was discovered between the mattress and box-spring of the bed where appellant had been sle eping ( Id . at 73, 95, 97; State’s Exs. 22, 26). In addition to appellant’s presence at the scene during the search and his close proximity to the weapon immediately before officers knocked on his door, the motel manager later confirmed that appellant had rented the room a couple of days before the search and “had been in the whole tim e.” (V Rep.’s R. at 104-05). Appellant thus had the right to control and possess t he location where the firearm was located. See Sutton v. State , 328 S.W.3d 73, 77 (Tex. App.—Fort Worth 2010, no pet.) (“As the State points out, the jury could have r ationally inferred from Sutton's statement of ownership or responsibility over the hous e that she could exercise care, custody, and control over the house's contents, including the gun.”).9 In his brief, appellant concedes that the revolver was found i n an enclosed space accessible to him—underneath the mattress of the only bed in th e motel room (Appellant’s Br. 12). Further, appellant had a special connect ion or relationship with the firearm, as several rounds o f .38 caliber ammunition were f ound in his nightstand near the side of the bed where the revolver was located (V Rep. ’s R. at 67,73, 95, 97- 98, 108). The ammunition was in a partially opened lockbox in the nightstand drawer, along with a clear plastic baggie containing methamphetamine an d a digital scale ( Id

. at 67, 73, 95, 97-98, 107-08. See Willis v. State , 192 S.W.3d 585, 593 (Tex. App.– Tyler 2006, pet. ref’d) (mem. op.) (“whether the accused posses sed other contraband when arrested” can serve as an affirmative link). In fact, app ellant had directed police to that particular nightstand when asked for the keys to his ve hicle parked outside (V Rep.’s R. at 66-67, 69, 97). The green Kia sedan was registere d to appellant and his wife, and officers discovered a safe containing more .38 calibe r ammunition, appellant’s employee identification card from Goodwill Industri es, and a Verizon bill addressed to Sondra Thurman ( Id . at 61, 75, 98-100, 113). See Jones , 338 S.W.3d at 742 (links showing special connection or relationship where one rifle found in room with mail addressed to defendant and another gun found near his wallet and prescription medication); Villegas v. State , 871 S.W.2d 894, 896 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d) (contraband’s location in relatio nship to the defendant's10 personal belongings can serve as a link). Viewing the evidence in the light most favorable to the verdict, the logical force from these links wa s sufficient for a rational trier of fact to have found beyond a reasonable doubt that appe llant exercised care, custody, control, or management over the firearm. Therefore, a ppellant’s first issue is without merit and should be overruled.

II. I SSUES T WO AND T HREE : Appellant failed to preserve any error in the trial court’s alleged failure to consider the full range of punishmen t, and even if he had, deferred adjudication comm unity supervision was unavailabl e to him. A RGUMENT In his second and third alleged issues, appellant claims that the trial court erred by finding him guilty following a bench trial on guilt/innocence, but before hearing evidence on punishment, without considering the option of defer red adjudication community supervision (Appellant’s Br. 14-17). As a preliminar y matter, appellant did not object to the trial court’s finding of guilt at the con clusion of the guilt/innocence phase of trial (V Rep.’s R. at 130). A complaint that the tria l court refused to consider the entire range of punishment for an offense or refused to con sider the evidence and imposed a predetermined punishment is not preserved for review unless a timely objection is raised at trial. Tex. R. App. P. 33.1(a); Teixeira v. State , 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d); Washington v. State , 71 S.W.3d 498, 499-500 (Tex. App.—Tyler 2002, no pet.).11 Even had appellant preserved the alleged error, he was not eli gible for deferred adjudication community supervision. “[W]hen in the judge's opi nion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere , hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without enteri ng an adjudication of guilt, and place the defendant on community supervision.” Tex. Code Crim. Proc. art. 42.12, § 5(a) (West 2014). “The power to defer adjudication re sts solely within the discretion of the trial court. The availability of the option is limited to defendants who plead guilty or nolo contendere.” Reed v. State , 644 S.W.2d 479, 483 (Tex. Crim. App. 1983). Appellant, with his counsel present, entered a plea of “not guilty” to the offense as charged in the indictment (V Rep.’s R. at 48), and a bench t rial on the issues of guilt/innocence and punishment followed. As appellant was ther efore not eligible to receive deferred adjudication community supervision from the tr ial court, his second and third alleged issues are without merit and should be overru led.12 P RAYER WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court overrule appellant’s alleged issues and affirm the judgme nt of the 7th District Court of Smith County, Texas, in the above-captioned cause. Respectfully submitted, D. MATT BINGHAM Criminal District Attorney Smith County, Texas

/s/ Aaron Rediker Aaron Rediker Assistant District Attorney SBOT #: 24046692 100 North Broadway, 4th Floor Tyler, Texas 75702 Office: (903) 590-1720 Fax: (903) 590-1719 (fax) arediker@smith-county.com

C ERTIFICATE OF C OMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the u ndersigned attorney certifies that the word count for this document is 2,073 words as calculated by Microsoft Word 2013.

/s/ Aaron Rediker Aaron Rediker13 C ERTIFICATE OF S ERVICE The undersigned hereby certifies that on this 31st day of July 2015, the State’s Brief in the above-numbered cause has been electronically filed, and a legible copy of the State's Brief has been sent by email to James W. Huggler Jr., a ttorney for appellant, at jhugglerlaw@sbcglobal.net

.
/s/ Aaron Rediker Aaron Rediker